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Election Law-Election Petition-Expenses incurred in the Conduct and Management of the Election-Maximum-Return of Expenses-Corrupt Practices Prevention Act 1883 (46 and 47 Vict. c. 51).

The petitioners in an election petition alleged that expenses had been incurred and payments made by the respondent, or persons on his behalf other than his election agent, "on account of or in respect of the conduct or management of the election," in excess of the maximum authorised by statute, and not included in the return of election expenses.

Within a period of sixteen months prior to July 1895 therespondent had visited the constituency on three occasions, on the first of which he remained from February to May 1894. On these occasions he addressed meetings and visited the electors, and was assisted in this work by the organising secretary of the local Conservative and Unionist Associations. The expenses of the meetings were defrayed by the Conservative Association, to whose funds the respondent contributed a sum of £240 during the two years preceding the election. Prior to July 1895 the respondent had not formally declared himself a candidate, but his work in the constituency was undertaken with the view of contesting the seat at the first vacancy. On 21st June it became known, by the defeat of the Government, that an election was imminent. Held that the words "expenses incurred on account of or in respect of the conduct or management of the election (1) had reference to a definite election within the knowledge and contemplation of the parties who are engaged in conducting and managing it, and therefore did not include the expenses incurred by the candidate prior to 21st June, there being no evidence of an attempt to evade the statute; and (2) that the words did not include the disburse ments by the political associations or the salary paid to their organising secretary; there not being any statutory prohibition against such associations incurring expense bona fide in political work, although in the interest of a candidate. Election Law-Election Petition--PollingAgent Employment of Polling Agent in other Capacity - Corrupt Practices Prevention Act 1883 (46 and 47 Vict. c. 51), sec. 18.

A person employed as a polling-agent is not under any disabilities except as regards his right to vote in the election, and is therefore entitled to canvass voters, or otherwise to assist voluntarily the candidate who employs him, so long as he is only employed and paid for the proper work of a polling-agent. 1. On 19th August 1895 James Hood and Andrew Gillanders, qualified voters at the election of a member of Parliament for the combined counties of Elgin and Nairn, held on the 16th and 23rd days of July 1895, presented a petition under the Parliamentary Election Act 1868 against John Edward

Gordon, the elected candidate, praying to have it declared that the election and the return of the respondent were null and void.

The petitioners averred that the election had been brought about by bribery, treating, undue influence, and corrupt and illegal practices.

On 6th September they applied to the First Division for leave to amend the petition, and on 16th October leave to amend was granted (see ante, p. 3), and the petitioners accordingly, on 19th October, lodged an amended petition. On that date the Election Judges pronounced the following interlocutor:-"Appoint the trial of said petition to be proceeded with within the Court-House at Elgin upon Tuesday, the 19th day of November 1895, at 10 o'clock, and ordain the petitioners, not later than three weeks before the said date of the trial, to lodge with the principal clerk of the First Division of the Court of Session, and serve upon the respondent, at the office of his agent in Edinburgh, a written statement setting forth the particular acts of bribery, treating, undue influence, and corrupt and illegal practices as to which they purpose to lead evidence at the trial."

This interlocutor proceeded upon the Additional Parliamentary Election Petition Rules of 1869, which provide as follows:- Rule 1. " Evidence need not be stated in the petition, but the Court, or either of the Election Judges, may, on the requisition of the respondent, order the petitioner, within such period previous to the day fixed for the trial of the petition as may in the circumstances be deemed right, to lodge with the principal clerk, and to serve on the respondent or his agent, in the manner prescribed with regard to election petitions, a written statement of such particulars as may be necessary to prevent surprise and unnecessary expense, and to ensure a fair and effectual trial.' Rule 2. "No evidence shall be received at the trial except as to matters within the written statement ordered as aforesaid, and tending to support the same, or matters which have been already sufficiently set forth in the petition, without the leave of the court or the judge, and upon such conditions as to the postponement of the trial, payment of costs, and otherwise, as may be ordered.'

In the statement of particulars prepared by the petitioners in terms of the interlocutor of 19th October, they set forth (Arts. I. and II.), in regard to the charges of bribing and treating, the names of the persons who were alleged to have been bribed or treated, their number on the roll of electors, or their designation in the case of non-electors, the persons by whom and the dates upon which the alleged acts were committed. In nine of the alleged cases of treating the day was specified. In all the cases of alleged bribing, and in most of the cases of treating, the month only was stated, and in some cases a latitude of two or three months was taken.

In regard to the alleged illegal practices, they set forth (Art. III.)—(First)... In or

about the month of February 1894, the said John E. Gordon announced, and it became publicly known, that he intended to present himself for election, and in point of fact the candidature of the said John E. Gordon then began. In the months of February, March, April, and May 1894, he held meetings in forty or fifty different places throughout the constituency, engaged in a houseto-house canvass, and performed other election work, all with a view to his election and return. And subsequent thereto he also performed such work. In respect of all such expenses and work, sums of money were paid and disbursed by him and others on his behalf, including the said John Wink and the said John Foster, and the societies and others mentioned in subsection 2 hereof, in respect of the conduct and management of the election, which expenses are not included in said return. And your petitioners intend to prove that the said John E. Gordon and his said agent well knew that all such expenses ought to have been included in said return, yet they knowingly and illegally failed so to include it. And further, your petitioners intend to prove that sums of money not included in said return were paid to agents, and organisers, and canvassers, by the said John E. Gordon, or by others in respect of the conduct and management of said election, with the knowledge and concurrence of the said John Edward Gordon, and of his said election agent. And the said agents, and organisers, and canvassers disbursed said sums of money for the purpose of conducting and managing said election. The petitioners believe and aver that the sum so expended amounted to not less than £700. (Second) That the following societies, clubs, or associations were the agents of the respondent in said election, and were recognised by him as agents-. 6. The Elgin and Nairn Conservative Association, whose offices are in Elgin, and whose secretary and treasurer is John Wink, solicitor, Elgin, and the District Committees connected therewith. 7. The Elgin and Nairn Liberal Unionist Association, whose offices are in Elgin, and whose secretary and treasurer is Hugh Stewart, solicitor, Elgin, and the District Committees connected therewith. The said associations mentioned in the foregoing list, and numbered 6, 7, 8, and 9 hereof, held numerous meetings during the course of said candidature, namely, from January 1894 till the date of the election, with reference to and for the purpose of promoting said candidature. That the said nine societies, clubs, or associations, from January 1894 until subsequent to said election, incurred expenses and expended money in conducting and managing said election, supplied literature, appointed agents and canvassers, and performed other work with the knowledge of the respondent and the said John Wink, and in the promotion of his candidaturethey acting as his agents in said matters.

Mr Wink afterwards became Mr Gordon's election agent, and Mr Foster was the organising secretary of the associations referred to in members (6) and (7) of the

above list.

To this statement the respondents lodged a Note of Objections on 31st October. They objected that the statements in Arts. I. and II. did not specify the places where the alleged acts of bribery or treating were committed, or, in the case of bribery, "the nature or amount of the said several

alleged bribes." Their objection to the third article was as follows:-The respondent objects that there is no relevant averment under the third head of the statement of particulars; and, further, that there is no specification as to the place or places, the time or times, or the details of the alleged payments, disbursements, or liabilities, and no sufficient specification of the persons, societies, clubs, or associations concerned in the matters complained of, or by whom the said disbursements, payments, and liabilities were made or incurred.

Argued for the respondent - The locus and the modus must be stated in regard to the charges of bribing and treating, these acts being of the nature of crimes. It is essential that in the case of bribery the modus should be stated, so that the respondent may have notice of the particular form of bribery alleged-Manchester case, 1892, 4 O'M. & H. 120; Day's Election Cases, p. 153; Rogers on Elections, vol. ii. p. 200, Appendix 4, Forms 38 and 39; Corrupt Practices Prevention Act 1854, secs. 2 and 4. The latitude as to time was too great, per Cave, J., Manchester case, 1892; Day's Election Cases, p. 154. As to the statements in Article III., the names of the individuals who made the payments, and not merely the names of the associations, must be specified-Hexham case, referred to at p. 14 of Day's Election Cases; Rochester case, id., pp. 98 and 104. It was also necessary to state the nature of the expenditure complained of, what was paid in cash, the persons to whom and by whom the payment was made, and the place and date of each payment. The private transactions of political associations could not be inquired into, and so far as the statement contained averments relating to such associations it was irrelevant. On all the points contended for the practice in England was in favour of the respondents, and even assuming there was a difference between the English and Scottish practice, which was not admitted, the English practice was to be preferred, in respect that there was more experience in England of the practice in the House of Commons Committees prior to the transference of election petitions to legal tribunals. practice before the Committees was to be followed where there were no special rules of Court-Sec. 26 of the Parliamentary Elections Act 1868.

The

Argued for the petitioners-The Scottish practice is in accordance with the course followed by the petitioners Boyd and O'Kane v. Stewart (Wigtown case), 7 R. 1170; Juridical Styles, vol. iii. p. 855. The form of order in England (Rogers, vol. ii. p. 200) is different from that in the interlocutor of 19th October, and the particulars stated by the petitioners sufficiently comply with that interlocutor. As regards Article III., the

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petitioners are prepared to give the dates and places of the meetings which they allege were paid for by the associations, but it is impossible for the petitioners to ascertain the names of the individuals who made the payments, and it is not reasonable to require that this should be done.

LORD M'LAREN-As regards the statements in Articles I. and II. dealing with the charges of bribery and treating, I am of opinion that there is insufficient specification. The statement of particulars ought to specify the places where the alleged acts of bribery and treating were committed, and in the case of bribery, the form in which the bribery was effected. It does not appear that in any of the cases in Scotland cited to us this question was argued to the Court or judicially determined. In

England the practice is in accordance with the ruling I have indicated. If the petitioners are not aware of these particulars, and are unable to specify them, that ought to appear in the statement.

The petitioners have indicated their intention to amend the statements in Articles I. and II. to this effect, and I propose that we should allow such amendments to be made. As regards Article III., dealing with illegal payments, or payments not included in the return of expenses, I think the respondent's objection ought to be sustained. There are no relevant averments in that article upon which the petitioners would, in my opinion, be entitled to an allowance of proof. It is not enough to say that political associations or clubs made payments in contravention of the statute. There must be specific averments as to the individuals through whom the alleged payments were made, and the particular items of which the petitioners complain.

LORD KYLLACHY concurred.

The Court pronounced the following interlocutor on 2nd November:-"Having considered the amended petition, together with the statement of particulars, and the note of objections thereto for the respondents, and heard counsel for the parties thereon, Sustain the

respon

dent's objection to the third head of the said statement of particulars, reserving to the petitioners to put in a new statement under this head: Also allow the petitioners to amend the other articles of the statement of particulars, such amendments to be lodged by Wednesday next.”

2. Along with their statement of particulars the petitioners lodged a specification of writings, for the recovery of which they moved that a diligence should be granted. It was objected for the respondent that it was incompetent for the Election Judges to grant this diligence. The question turned upon the following sections of the Parliamentary Elections Act 1868 (31 and 32 Vict. cap. 12). (Section 2)-The expression "the Court" shall, for the purposes of this Act, in its application to England, mean the Court of Common Pleas at Westminster, and in its application to Ireland, the Court

of Common Pleas at Dublin; and such court shall, subject to the provisions of this Act, have the same powers, jurisdiction, and authority with reference to an election petition and the proceedings thereon as it would have if such petition were an ordinary cause within their jurisdiction. (Section 58)-The provisions of this Act shall apply to Scotland subject to the following modifications:-(Subsection 1) The expression "the Court" shall mean either Division of the Inner House of the Court of Session, and either of such Divisions shall have the same powers, jurisdiction, and authority with reference to an election petition in Scotland, and the proceedings thereon, which by this Act are conferred on the Court of Common Pleas at Westminster with respect to election petitions in England. (Section 26)—Until rules of court have been made in pursuance of this Act, and so far as such rules do not extend, the principles, practice, and rules on which Committees of the House of Commons have heretofore acted in dealing with election petitions shall be observed, as far as may be, by the court and judge in the case of election petitions under this Act.

Argued for the petitioners-A diligence for the recovery of documents was granted in the Wigtown case (Boyd and O'Kane v. Stewart), 7 R. 1170, and also in the Dumbartonshire case (unreported). In the latter, though no objection was taken on the particular ground of competency, the diligence was undoubtedly opposed. Section 26, if considered in connection with section 2, was intended to provided a rule for dealing with contingencies to which the ordinary procedure of the Court was inapplicable or inadequate. The English cases were not applicable, because there was no procedure in England analogous to the Scottish diligence.

Argued for the respondents-It has been settled in England that such an order as is asked by the petitioners is incompetent, Moore v. Kennard (Salisbury case), L.R. 10, Q.B.D. 290; Wells v. Wren (Wallingford case), L.R., 5 C.P.D. 546. The power to exercise their ordinary jurisdiction in the case of election petitions conferred by section 2 of the Parliamentary Elections Act 1868 is "subject to the provisions of this Act," that is, subject, inter alia, to the provisions of section 26, and that section expressly provides that the procedure before the Parliamentary Committees shall be followed in the absence of a rule of court dealing with the question. It was never the practice of Parliamentary Committees to grant a diligence for the recovery of documents before the trial, and there was no special rule. There was no precedent upon the point in Scotland. In the Dumbartonshire case, in which a diligence was granted, the question of competency was not considered, but only questions relating to the particular articles of the specification, The petitioners' application was therefore incompetent, and ought to be refused.

LORD M'LAREN-The debate to which we

have listened raises a question of some general importance in election law, and which has not yet been decided in Scotland either by the Election Judges or by one of the Divisions of the Court. It is true that in the report of the Wigtownshire case (Boyd and O'Kane v. Stewart, 7 R. 1170) it is stated that a diligence to recover documents was granted, but there is nothing in the report which suggests that this was the subject of discussion. No opinions are reported, and it is stated in Mr Blair's Election Manual (p. 278) that in point of fact the question of the competency of granting a diligence was not raised. Then my colleague, Lord Kyllachy, states that it is within his knowledge of the Dumbartonshire case, where such an application was also granted, that the question of competency or of consistency with the past election law and practice was not raised. Therefore it appears to me that the point is open so far as regards previous decisions of this Court. Now, at the time when these orders were pronounced the question seems to have been not very much considered either in Scotland or in England, and we find that in the Stafford case, 20 L.T. 237, an order for the recovery of documents, of vouchers, and orders for payment by the respondent, was granted by a judge of very high authority - Mr Justice Blackburn. The question, however, was raised in England in the two cases that have been cited, and a very authoritative judgment was given in the case of Moore v. Kennard, 10 Q.B.D. 290, after consideration of all that had been done before, and of the policy of the statute under which the jurisdiction is exercised. The judgment of the Court in that case does not appear to proceed upon anything technical or peculiar to the practice of the English courts. It is not because an English Common Law Court does not usually grant an order for recovery against parties other than the parties to the case, but because in the opinion of the judges who decided the case the practice of Parliamentary Committees was entirely adverse to such a proceeding, and that under the statute which guides the courts, the law and practice of Parliament is referred to as a guide in all matters that are not regulated by the statute itself, or by the rules and orders made in pursuance of it. Now, even if I had more difficulty than I have on this subject, I should consider that this case was an authority to be deferred to, because it is a judgment of a co-ordinate court on a question of practice on the same statute, a statute which is intended to be worked in precisely the same way throughout the United Kingdom with reference to the preexisting practice, which was the practice of Parliamentary Committees sitting to try election petitions both for Scotland and for England. But I do not entertain any doubt as to the soundness of that decision. On the contrary, my view entirely coincides with what was expressed by the English judges. I think it is not contemplated in the statutes constituting this Court that there should be any preliminary proceedings involving proof, but that the whole of

the matters of fact, including documentary as well as parole evidence, are to be investigated at the trial. It is not to be overlooked that the probability is that such an investigation would not lead to any useful results, but I do not proceed on that, but rather on a more general view, that it was not intended that any such powers should be exercised. If it were necessary that a certain document should be on the table of the Court for consideration, I have no doubt whatever that we have jurisdiction to make an order; for example, in the case of the orders that are granted for recovery of ballot papers and counterfoils, not only in questions of enumeration but also for the purposes of scrutiny. That, of course, is a proceeding directed for a quite different purpose from the present, and my opinion is that the diligence moved for should be refused.

LORD KYLLACHY-I am of the same opinion. We are here exercising statutory jurisdiction, that is to say, jurisdiction subject to the provisions of the Act of 1868. Now, one of the provisions of that Act is the provision contained in section 26, “that until rules of court have been made in pursuance of this Act, and so far as such rules do not extend, the principles, practice, and rules on which Committees of the House of Commons have heretofore acted in dealing with Election Petitions shall be observed, so far as may be, by the court and judge in the case of Election Petitions under this Act. Now, that being so, two things are admitted-first, that according to the practice and rules of Parliamentary Committees, the recovery of documents antecedent to the trial of the case was not permitted; second, that that being the rule of Parliament, no rules of court have yet been made conferring upon Election Judges such a power. Whether it would be a convenient power whether it would be a power that could be properly exercised consistently with the scheme of the Act of 1868 and of the Corrupt Practices Act-I do not find it necessary to say, but no such rule has yet been made. That is enough. I therefore on principle entirely agree with the views expressed by the English judges in the cases which have been quoted, and I also agree with your Lordship that even if we had doubts on the subject we should hesitate to differ.

The Court accordingly refused the motion. On 6th November the petitioners, in terms of the interlocutor of 2nd November, lodged an amended statement of particulars.

On 12th November the petitioners presented a note, in which they craved warrant to cite certain witnesses and havers to attend the trial. A list was subjoined of the names of the witnesses and havers whom the petitioners proposed to cite.

Counsel for the respondent objected to warrant being granted for the citation of havers, on the ground that no power to cite havers was given by the Election Petition Rules, 1868 (see rule 23 and Sched.

D.

, v

If

LORD M'LAREN-No specification has been granted here; on the contrary, after consideration, that was refused, and all that can be done under the warrant asked for is that a notice may be given to the witness of the documents that it is desired he should bring with him. Then it must be left to the witness to act as he thinks proper. he thinks that the documents asked for are altogether outside the scope of the inquiry, and such as the Election Judges would not call upon him to produce, he may act accordingly, but if, on the other hand, documents which might throw light on the proceedings are called for and he does not bring them, there may be a question of the adjournment of the trial, and a question of expenses. We thought that it was not in accordance with the general law of elections to grant recoveries before trial; therefore it rather appears to me that in granting diligence against witnesses and havers we imply nothing more than that the witnesses may be called upon to produce documents relative to the case, the relevancy to be determined, of course, by the Court.

LORD KYLLACHY-A citation of havers merely gives the witness notice that he is called upon to produce documents at the trial. Whether he shall produce them at the trial will depend upon what we decide upon objection by him, or upon objection by the other side, or upon objection by ourselves. This is the usual form of diligence which is granted in the Outer House where proofs are allowed. The diligence is granted against witnesses and havers, and it often happens that the haver states, "I thought this document had nothing to do with the case, and could not have imagined that the Court would call upon me to produce it," and the haver has been sent back for it, and that involved certain consequences. After all it merely means that he comes with a document prepared to produce it if called upon.

The Court accordingly granted warrant to cite witnesses and havers in usual form.

3. The trial of the petition began at Elgin on 19th November, and evidence was led first in regard to the charge of illegal practices.

In their amended statement of particulars the petitioners averred-(1) That the expenses of meetings addressed by Mr Gordon during the period from February 1894 to June 1895 (which were set forth in detail so far as known to the petitioners) were "expenses incurred on account of or in respect of the conduct or management of the election," and had not been included in the return of election expenses as required by the Corrupt Practices Prevention Act 1883, sec. 33, and had been paid by persons other than the respondent's authorised election agent, in contravention of sec. 28 of the same statute. (2) That personal expenses had been incurred by the respondent, during the same period, in connection with his candidature, which, when added to those included in the return, exceeded the maximum of £100 allowed by sec. 31 (1) of the VOL. XXXIII.

said Act. (3) That the salary paid to Mr Foster, the organising Secretary of the County and Burgh Unionist Associations, during the period in question, and the sums disbursed by him for travelling and other expenses, were expenses incurred in the conduct and management of the election of the respondent, and that they ought, in like manner, to have been paid by the authorised election agent of the respondent, and included in the return. They averred that if all these outlays, thus improperly omitted, had been included in the return, the maximum of election expenses allowed by sec. 8 of the Act would have been largely exceeded. (4) That certain persons, including a man of the name of John M'Hardy, had been illegally employed and paid by the respondent, or by others on his behalf, and with his knowledge and concurrence, to act, and did act, as subagents, organisers, and canvassers at the said election. In particular, that a sum of £17, 17s. was paid to M'Hardy, who was nominally employed as a polling agent, for services other than those specified in the return, and outside his proper duties. They alleged that this constituted a contravention of sec. 17 (1) of the said Act. On these grounds they maintained that the election was illegal and void.

From the evidence adduced in regard to this part of the case, it appeared that on 9th February 1894 Mr Gordon addressed for the first time a political meeting in the constituency upon the invitation of the local Conservative Association. After this meeting a resolution was adopted by the committee of the Association that Mr Gordon was a fit and proper person to be invited to come forward and contest the seat in the Unionist interest at the first opportunity. In answer to this resolution Mr Gordon informed the committee that if, when an election came, the Associations and the Unionists generally agreed to put him forward as their candidate, he would consider the question then, and that he would defray the expenses of the election period, but that he would expect the local associations to defray the expenses of their political work until the election period. There was no pledge or understanding either by the committee or by him binding them to accept the candidature, or them to give an invitation. He was thereafter adopted as prospective candidate by both Unionist Associations. The respondent left the counties for a few weeks, but returned on 20th February, and, with the exception of a few days, remained in the constituency till 8th May. During that time he held more than forty meetings throughout the constituency, and visited numbers of the electors personally at their homes. In visiting the electors he was accompanied by Mr Foster, the organising secretary of the County and Burgh Unionist Associations, who also made the arrangements for the meetings. On 8th May he left, but returned to the constituency in October, when he remained three weeks, addressed two meetings, and visited some of the electors. He was

NO. VIII.