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Application

for particulars.

Time for delivery of lists.

Order of proceeding at the trial.

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 has 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

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 unseating 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.)

invariable.

The practice is not, however, invariable. In one case the Practice not petitioner, having withdrawn his general charges, proceeded 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 in 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 his 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.

no locus

Equality of

votes.

On a scrutiny register generally conclusive.

counsel. (Malcolm v. Parry, L.R., 9 C.P., 614; 43 L.J., C.P., 331; 31 L.T., 331.)

The decision of the returning officer as to any question arising in respect of any ballot paper is final, subject to reversal on petition questioning the return. (The Ballot Act, 1872, Section 2.)

A petition may be presented on the sole ground that the returning officer has miscounted the votes, in which case the ballot papers will be re-counted in the presence of the Court. (Renfrew, 2 O'M. & H. 213.)

If the returning officer finds the votes equal, and he is a registered elector, he may, but he is not bound to, give a casting vote. (Ballot Act, 1872, Section 2.) If he gives no casting vote he will make a double return. As to the procedure where one of the candidates so returned is petitioned against and declines to oppose the petition see Section 40 of the Parliamentary Elections Act, 1868, Appendix.

Upon a scrutiny, only those persons whose names are on the register for the time being in force can be admitted as having been entitled to vote, and the register is conclusive of the right of any person upon it to vote although such person ought to have been struck off by the revising barrister. The Court, upon a scrutiny, will only strike off the votes of persons who ought not to be upon the register if from some inherent, or, for the time, irremovable quality in themselves, they have not the status of parliamentary electors-for instance, peers, women, persons holding certain offices or employments, and persons convicted of crimes which disqualify them from voting. (The Ballot Act, 1872, Section 7. Stowe v. Jolliffe, No. 2, 43 L.J., C.P. 265, L.R. 9, C.P. 734). As votes perversely given for a candidate who is incapable of being elected after notice of his incapacity, are thrown date incapable away, they will be struck off upon a scrutiny, and so the of being elected. candidate apparently in a minority may be returned. But if a candidate has been guilty of bribery he is not so incapacitated that votes given for him after notice of the bribery will be thrown away. It would be otherwise if notice were given that he had been found guilty of bribery. In order

Votes given after notice for a candi

that votes given after notice may be struck off, there must be something wanting in the candidate himself which cannot be supplied, the existence or non-existence of which is not dependent on argument or decision, but which the law insists shall exist in every one who puts himself forward as a candidate. (Drinkwater v. Deakin, L.R., 9 C.P., 626, 43 L.J., C.P., 355, 30 L.T., 832, not following Trench v. Nolan, Ir.L. Rep. 6 C.L., 464, or the Norwich Case, 19 L.T., n.s., 619, the Clitheroe Case, 2 P.R. & D., 276, 285 and Moore v. Scully, 9 Ir.L. Rep., C.L., 217.)

incapacity.

If a case arises for giving notice of the disqualification of Notice of a candidate, the notice should be express and positive, and it candidate's should be served personally upon as many electors as possible, and advertised generally. (Yates v. Leach, L.R. 9 C.P., 608, 609, 43 L.J., C.P., 377, 30 L.T., 790.)

defective.

Another class of votes which will be struck of upon a Ballot papers scrutiny is those given by ballot papers open to any of the ill marked or following objections: (1) want of official mark; (2) voting for more candidates than entitled to; (3) writing a mark by which the voter could be identified; (4) unmarked or void for uncertainty. (Ballot Act, 1872, Schedule 1, r. 36.) On the other hand, ballot papers improperly rejected on any of these grounds may be added to the poll on a scrutiny. Generally, if the Court can infer that the voter intended to vote and gather for whom he intended to vote, the vote will be admitted. As to what marks on the ballot paper will render it good or bad, see Wigtown, 2 O'M. & H., 215, Woodward v. Sarsons, L.R., 10 C.P., 738, 44 L.J., C.P., 293, 32 L.T., 867, Berwick, 3 O'M. & H., 178, 44 L.T., 289. If the returning officer marked the paper with the voter's number on the register, as that might lead to identification of the voter, the vote would be bad. (Woodward v. Sarsons, supra.)

The votes of the following classes of persons are also bad upon a scrutiny: (1) bribers; (2) persons bribed; (3) treaters; (4) persons treated; (5) persons guilty of using undue influence; (6) persons unduly influenced; (7) persons procuring personation; (8) personators; (9) paid agents

Votes struck off on a

scrutiny.

Rule as to striking off votes for persons corrupted.

employed for any of the purposes of the election, 30 & 31 Vict. c. 102, section 11; (10) returning officers; (11) persons convicted of corrupt practices (Parliamentary Elections Act, 1868, section 45); (12) infants; (13) women; (14) imbeciles and lunatics; (15) peers; (16) perhaps, aliens (see Berwick, 44, L.T., 289, 3 O'M. & H., 178, and Oldham, 1 O'M. & H., 151, 20 L.T., 302); (17) policemen; (18) traitors; (19) felons, and (20) the holders of certain offices the subject of statutory prohibitions.

By the Ballot Act 1872, Section 25, "where a candidate on the trial of an election petition, claiming the seat for any person, is proved to have been guilty, by himself or by any person on his behalf, of bribery, treating or undue influence, in respect of any person who voted at such election, or where any person retained or employed for reward by or on behalf of such candidate for all or any of the purposes of such election, as agent, clerk, messenger, or in any other employment, is proved on such trial to have voted at such election there shall, on a scrutiny, be struck off from the number of votes appearing to have been given to such candidate, one vote for every person who voted at such election and is proved to have been so bribed, treated or unduly influenced, or so retained, or employed for reward as aforesaid." Rule 41 of the same Act seems to contemplate that the Court shall ascertain how the voter bribed did vote, and that his vote shall be struck off the poll of the candidate for whom he voted. The question becomes important where a voter bribed to vote for A votes for B. The section and the rule have been construed in the case of Malcolm v. Parry, L.R., 9 C.P., 610; 43 L.J., C.P., 331; 31 L.T., 331, with this result, that if a corrupt practice by a candidate, or his agent, is proved in ballot paper regard to a voter, and that voter voted, upon a scrutiny, one vote in respect of such voter will be struck off the poll of such candidate without regard to the question whether the voter so corrupted voted for such candidate or for his opponent. If the corrupt practice was neither by a candidate nor his agent, the Court must look at the counterfoils to see how the voter voted, and strike a vote off the poll of the

When the

of the corrupted voter will be examined.

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