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employment, payments, hirings by other agents of the
any corrupt or illegal practice by the candidate, or
of any of his agents. Proof of freedom from illegal employment, payment and hiring, is not required.
It will be difficult for a respondent to satisfy these stringent conditions, but it would seem that when he does satisfy them, the Court has no discretion--the election is saved.
The petitioner, on his side, should be prepared with evidence to prove that the respondent cannot satisfy the statutory conditions.
When the respondent, finding the return cannot be Respondent's supported, has surrendered, and the election is declared declaration of
personal void for corrupt practices, it has been usual for him to go evidence. into the box and declare on oath his personal innocence of any corrupt practice. In one case the Court allowed the respondent's legal agents to declare their innocence on oath. Wigan, 4 O’M. & H., 1. But in the Boston Case, 44 L.T. 287, the Court held that the rule must be adhered to, that the sitting members only could be called after the seat had been vacated. If on the trial of the election petition the two judges Difference of
opinion trying the petition should differ in opinion as to whether
between the the respondent was duly elected, the respondent will retain judges. his seat (42 & 43 Vict. c. 75). On the same principle, if the judges differ as to the subject of a report to the speaker, they are to certify the difference, and make no report on the subject in difference (ibid.).
When the trial is concluded, the Registrar will ascertain Witnesses, and certify the amount to be paid to any witness whose be taxed by expenses may be allowed by the Court (Rule 5 of 1875). Registrar. The registrar's certificate is not conclusive as between the petitioner and the respondent. The registrar only taxes between the witness and the party who subpænaed him. (MLaren v. Home, 7 Q. B. D. 477, 50 L. J., C. L. 658.)
SECTION III.-ON A SCRUTINY.
A scrutiny takes place when the petition claims the seat for scrutiny is
one or more of the defeated candidates as having been duly elected. The seat is not often claimed by a petition because of the difficulty in wiping off any but the most inconsiderable majority upon a scrutiny, the cost of a scrutiny and the fact that when the seat is claimed by the petition, it becomes permissible for the respondent to give recriminatory
evidence against the candidate for whom the petition claims Who entitled the seat (31 & 32 Vict. c. 53). Any person entitled to
petition is entitled to claim a scrutiny of the votes given, upon an allegation that a candidate other than the person
returned was duly elected. But after such a petition has Withdrawal been presented, the claim of the seat may be withdrawn with of claim.
the leave of the Court on motion or a judge at chambers on summons (Stroud, 3 O'M. & H., 7). But, ordinarily, the Court will not allow the claim of the seat to be withdrawn (Aldridge v. Hurst, 1 C.P.D., 410; 45 L.J., C.P. 431; 35
L.T. 156 ; 24 W.R. 708). Recrimina- If the petitioner, at the trial, having established that the tory case when
respondent's election was void for corrupt practices, should excluded.
then abandon the claim of the seat, recriminatory evidence cannot be gone into (Gravesend, 44 L.T 64; 3 O’M. & H., 81). Indeed, if once it be ascertained that there is no claim laid to the seat, even the account of the election expenses of the unsuccessful candidate sent to the returning officer could not be called for (Thirsk, 3 O’M. & H., 113).
For forms of petitions in cases in which the seat is claimed petitions for
see the General Rules (Parliamentary), 1868; r. 5, Stroud, scrutiny.
3 O’M. & H., 7, and Berwick, 3 O’M. & H., 178; 44 L.T.,
289. Inspection In cases of scrutiny and whenever questions of the im
proper rejection or reception of voting papers arise, it 18 papers, &c.
generally desirable, before trial, to obtain inspection of the rejected ballot papers, the counted ballot papers, and sometimes, of the sealed packet of counterfoils. A judge at
may order inspection of the rejected ballot papers to be had, but only the Court can order inspection of the counted ballot papers and counterfoils. The Ballot Act, 1872, Section 1, rr. 40 & 41. The procedure is by summons or motion.
Any application for inspection must be supported by affidavit. The Court will jealously preserve the secrecy of the ballot. In the Tyrone Case, 21 W.R. 627; 7 I.R., C.L., 190, the Court would not allow either party to see the counterfoils or the backs of the ballot papers, but only their faces. This was followed in Stowe v. Jolliffe (L.R. 9 C.P., 447; 43 L.J., C.P. 173, 30 L.T. 299; 22 W.R., 946), but in neither of these cases was it alleged that votes improperly marked had been received. In the Berucick Case (1880), the judge at chambers, by consent of both parties, ordered inspection of the counterfoils and all the ballot papers.
All the other documents forwarded by the returning officer to the clerk of the Crown, including the marked register, are open to public inspection, Ballot Act, 1872, Section 1 r. 42 (James v. Henderson, 43 L.J., C.P.; 238; 30 L.T., 527). It is immaterial that a scrutiny is not prayed (ibid.). The practice up to trial in scrutiny cases is similar to that Delivery of
scrutiny lists in cases of ordinary petitions, except that the petitioner is and list of bound, in addition to particulars, to deliver scrutiny lists, objections. and the respondent must deliver scrutiny lists and a list of his objections to the election of the candidate for whom the seat is claimed.
The rules are as follows :
RULE VII. (1868.)—“When a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, the party complaining of or defending the election or return, shall six days before the day appointed for trial deliver to the master and also to the address, if any, given by the petitioners and respondent, as the case may be, a list of the votes intended to be objected to and of the heads of objection to each such vote, and the master shall allow inspection and office copies of such lists to all parties concerned ; and no evidence shall be given against the validity
of any vote nor upon any head of objection not specified in the list, except by the leave of the Court or judge upon such terms as to amendment of the list, postponement of the inquiry and payment of costs as may be ordered.”
RULE VIII. (1868).--"When the respondent in a petition under the Act, complaining of an undue return and claiming the seat for some person, intends to give evidence to prove that the election of such person was undue, pursuant to the fifty-third section of the Act, such respondent shall, six days before the day appointed for trial, deliver to the master and also at the address, if any, given by the petitioner, a list of objections to the election upon which he intends to rely, and the master shall allow inspection and office copies of such lists to all parties concerned ; and no evidence shall be given by a respondent of any objection to the election not specified in the list, except by leave of the Court or judge, upon such terms as to amendments of the list, postponement of the inquiry and payment of costs as may be ordered.”
If the respondent's list of objections is vague and general, the petitioner should apply at chambers for an order for particulars. The Court bas probably jurisdiction to make such an order under Gen. Reg. (Parl.), 1868, r. 6.
The scrutiny lists and list of objections must be delivered six clear days before the trial, exclusive of Sunday, and of the day of trial and of the day of service (Joyce v. O'Donnel, 22 W.R., 655); and if the lists are not delivered within the time the Court cannot allow evidence to be given against the validity of votes or allow a list to be subsequently delivered (Nield v. Batty, L.R. 9, C.P. 104, 43 L.J., C.P. 73, 29 L.T. 747, 22 W.R. 407). But if an imperfect list were delivered in proper time the Court could afterwards allow amendments in, or additions to, it to be made (ibid. per Denman, J.),
At the trial it has been most usual for the petitioner to open his general case against the respondent (without going into a scrutiny) with the view of disqualifying the respondent, whether he be in a majority or no. Then the respondent answers the case made against him, and proceeds to open his
Time for delivery of lists.
Order of pro
ceeding at the trial.
general case against the unsuccessful candidate, which is then answered. Afterwards the scrutiny will, if necessary, be gone into. The reason for postponing the scrutiny is, that if both parties be disqualified (e.g., for bribery by an agent) a scrutiny becomes useless. If the petitioner be so disqualified, his claim to the seat is gone, but the scrutiny may proceed for the purpose of upseating the other, by placing him in a minority, in which case there would be a new election. (York, South-West Riding, 10’M. & H. 213; Southampton, 1 O'M, & H. 222.) If the respondent be so disqualified, he may continue his resistance to the petitioner's efforts upon a scrutiny to place himself in a majority, and if the resistance be successful, there must of course be a new election. (Norwich, 19 L.T. 619, 1 O’M. & H. 8.)
The practice is not, however, invariable. In one case the Practice not petitioner, having withdrawn his general charges, proceeded invariable. with the scrutiny, and placed himself in a majority of three. Then the respondent proceeded with his general recriminatory charges and the scrutiny, and placed himself vin a majority of three. (Berwick, 3 O’M. & H. 178, 44 L.T. 289.)
When the scrutiny is opened it is for the petitioner to put himself (or the persons whom he alleges to have been duly elected) in a majority. For this purpose he may begin with any class of objections he likes, but it is usual to require him (and the respondent in his turn) to finish all bis objections of the class he begins with before proceeding to any objection of another class. Thus, if the petitioner begins with a case of bribery, he finishes all the cases of bribery before opening any case of intimidation.
In the Oldham Case (20 L.T., 302, 1 O’M. & H., 151) there were four candidates standing on the poll in the following order, H., P., C. and S. The scrutiny proceeded in the first instance as between C. and P., on the understanding that when C. had been placed in a majority over P., the scrutiny should then be proceeded with as between S. and H.
Upon a scrutiny a voter, whose vote is attacked, has no Elector has locus standi as a party, and is not entitled to be heard by his standi.