To whom applications to be made. Limits of master's jurisdiction. Election petitions. To what presented. discretion in other cases, may require similar evidence to that necessary under Section 22. Any order made under Section 34 may make the allowance of an authorised excuse conditional upon the making of the return and declaration in a modified form, or within an extended term, or upon other terms being complied with. (Sub-section 3.) As to the practice, when relief is sought by a candidate against the consequences of an excess of expenditure caused by the candidate having been a joint candidate (see p. 120 infra). Applications to the High Court, under the jurisdiction conferred by the Act of 1883, may be made (Section 56)— "(a.) In criminal proceedings, to any judge of the Queen's Bench Division; "(b.) In other matters, (1) to any judge on the rota for the trial of election petitions, and either in court or at chambers; or (2) to a master, subject to appeal ;" except that a master has no jurisdiction at all on applications under Section 23, Section 34; that is, in regard to applications for (1) orders declaring any act or omission to be an exception from the provisions of the Act with respect to illegal practices, payments, employments, or hirings; or (2) orders allowing an "authorised excuse" in regard to the return or declaration of expenses. A master may make orders allowing the withdrawal of election petitions. SECTION II.-ON ELECTION PETITIONS. The practice upon election petitions is now regulated by the Parliamentary Elections Act, 1868, and the rules thereunder of Michaelmas term, 1868, March, 1869, and January, 1875, and the Act of 1883, all of which are contained in the appendix hereto. An election petition, which lies in England to the Queen's Bench Division of the High Court of Justice, in Scotland to the Court of Session, and in Ireland to the Court of Common Pleas, may be presented by any one or more of the following persons: (1.) Some person who voted, or who had a right to vote Who may at the election to which the petition relates; or petition. (2.) Some person claiming to have had a right to be returned or elected at such election; or, (3.) Some person alleging himself to have been a candi date at such election, i.e., one who has been nomi nated as, or has declared himself a candidate at It is safer to join several petitioners, lest there should turn Several out to be some objection to one petitioner. The respondent persons should join. or respondents will be the person or persons whose return is impeached; but a person who claims to have been elected and acts as such may also be made a respondent. (Yates v. Leach, L.R., 9 C.P., 605; 43 L.J., C.P., 337; 30 L.T., 790.) An election petition abates by the death of the petitioner How petition or of the survivor of several petitioners, but not by the abated. death of the respondent. Upon the respondent's death another person may be substituted as respondent. (Morton v. Galway, 9 Ir.R., C.P., 173; 3 O'M. & H., 20.) A petition may be presented, although the candidate returned die after the return and before presentation of the petition. (Ibid.) A dissolution of Parliament brings a petition to an end. (Carter v. Mills, 9 L.R., C.P., 117; 43 L.J., C.P., 111; 22 W.R., 318.) But the successful party was declared entitled to his costs where the dissolution took place after the decision of the petition, but before the judge's certificate reached the speaker. (Marshall v. James, 9 L.R, C P., 702; 43 L.J., C.P. 281; 30 L.T., 559, 22 W.R,, 738.) 66 The petition must be signed by all the petitioners. time to be presented. If the petition question the return on the ground of corrupt Within what practices, or on any other ground than an allegation of illegal practices " under the Act of 1883, it must be presented within 21 days after the return has been made to the Clerk of the Crown, "unless it question the return or election upon an allegation of corrupt practices, and specifically When the time begins to run. When the corrupt act is after the election. alleges a payment of money or other reward to have been made by any member or on his account, or with his privity, since the date of such return, in pursuance or in furtherance of such corrupt practices, in which case the petition may be presented at any time within 28 days after the date of such payment." (Parliamentary Elections Act, 1868, Section 6, Sub-section 2. As to subsequent illegal practices, see Section 40 of the Act of 1883.) The 21 days begin to run when the return has come to the hands of the Clerk of the Crown so that he can act on it. Where, therefore, it was left at his office with a housekeeper, on the evening of February 4, and was received by the Clerk of the Crown from the housekeeper on the morning of the 5th, the time began to run from the 5th. (Hindle v. Waring, L.R. 9, C.P., 435; 43 L.J., C.P., 209; 30 L.T., 329; 22 W.R., 735.) Sundays do not count in any of the periods allowed for filing petitions. (Pease v. Norwood, L.R., 4, C.P., 235; 38 L.T., C.P., 161.) (Section 40, Sub-section 5 of the Act of 1883.) The provision that a petition may be presented within 28 days of a corrupt payment made after the return, seems to apply only where the corrupt payment is made by the member, or with his privity. (Salford, 20 L.T., 120; 1 O'M. & H., 133.) Whether on such a petition the petitioner would be confined to evidence of such corrupt payments made after the return, or would be allowed to charge and prove corrupt practices at or before the return is doubtful. (Galway, 1 O'M. & H., 303; Kidderminster, 2 O'M. & H., 170.) These rules as to the limit of time for the presentation of a petition for corrupt practices, irregularities at the poll, miscounting or improper return, are untouched by the Act of 1883. By Section 40 of that Act it is declared that that section shall apply where the illegal practice amounts to a corrupt practice. But as Sub-section 2 shows that the 21 days' rule is preserved in regard to petitions under the Act of 1868, it would seem that the limit fixed by Section 40 applies not in cases of corrupt practices generally but only when the illegal practice charged- as, for instance, paying for the exhibition of election addresses-turns out to have been done with the intent to corrupt the payee or some elector. against the If this view is correct, a petition which might have been Time for presenting presented had the Act of 1883 not been passed, must still be petition presented within the 21 days. But if a petition is presented for an offence for an "illegal practice" done under the new Act, it will be Act of 1883. in time if presented before the expiration of 14 days after the day on which the returning officer receives the return and declarations respecting election expenses by the member to whose election the petition relates. petition may charge. If the 21 days from the return be allowed to slip by, a What such a petition subsequently and duly presented, complaining of an "illegal practice," may not charge any of the common corrupt practices chargeable under the Act of 1868. A petition should generally therefore be presented within 21 days after the return, and if any illegal practice be discovered within the 14 days after the returning officer receives the returns and declarations, the High Court may within these 14 days amend the petition. (Section 40.) The application for leave to amend should be by motion or by summons at chambers to a judge on the rota (Section 56) or a master, upon notice to the other side and an affidavit speaking generally to the facts. Just as in regard to corrupt practices, so in regard to illegal practices, if (Section 40) the Time for election petition specifically alleges a payment of money or some other act to have been made or done since the day when the returning officer received the returns and declarations, by the member or any agent of the member, or with the privity of the member or his election agent, in pursuance or in furtherance of the illegal practice alleged in the petition, the petition may be presented at any time within 28 days after such payment or other act. petition in respects of acts done return of after the expenses. The time for presenting a petition for illegal practices How the time counts, when the returns and declarations are received on is reckoned under Act of different days, from the last of these days, or where there is 1883. an authorised excuse or excuses for failing to send in the returns and declarations, from the date of the "allowance of the excuse," or the date of the allowance of the last excuse Practice on (Section 40, Sub-section 4.) By Section 34,Sub-section 4, of the Act of 1883, the date of the allowance of the excuse is the date of the order allowing it, or if conditions are to be complied with, the date at which they are fully complied with; and by Sub-section 5, for the purposes of Section 40, time is to be reckoned just as it reckoned for the purposes of the Parliamentary Elections Act, 1868, that is to say, the first day does not count, nor any Sunday, but the last day does count. If circumstances likely to invalidate an election transpire, filing petition. and it is decided to present a petition, get the petition settled by counsel, fair copied, and signed by all the petitioners. Draw the recognizance (Gen. Rules, Parl., 1875, R. 19, contains the form post, Appendix), and get it acknowleged by all the sureties. Within the 21 days (or 14 or 28 days, as the case may be) leave the original petition and a fair copy thereof, and the recognizance, and an affidavit by each of the sureties that he is possessed of property above what will satisfy his debts of the clear value of the sum for which he is bound, at the office of the master (the election petition office in the Royal Courts of Justice), and take the receipt of himself or his clerk for the petition; at the same time leave a notice in writing of the name and address (within three miles of the General Post Office) of the petitioner's agent. Filing petition during holidays. Service of petition. Note that if the last day for filing a petition (or anything else required to be filed in a given time) fall on a holiday, the petition must be put into the letter box at the master's office on that day (or earlier), and an affidavit, stating when it was so delivered, must be filed on the first day after the expiration of the holidays. (Rule 4, 1875.) The respondent does not enter an appearance, but before service of a petition or at any time within a week after service, he or his agent must leave a similar notice in writing of the name and address of his town agent. The recognizance must be acknowledged before a judge at chambers or the master in town, or a justice of the peace in the country. A London magistrate in town will not do. (Shrewsbury, 19 L.T., 499.) Within five days after presentation of the petition, serve a copy. |