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examine any witness so compelled to attend, or any person in court, although such witness is not called and examined by any party to the petition. After the examination of a witness as aforesaid by a judge, such witness may be crossexamined by or on behalf of the petitioner and respondent, or either of them." Under this section witnesses were called by the Court in the Salisbury Case (3 O’M. & H., 134), but the prevailing opinion has been the duties of the judges are judicial and not inquisitorial. (Chester, 44 L.T., 287 ; Stroud, 2 OM. & H., 107.) Now by the Act of 1883, Section
43, it is provided : "On every trial of an election, petition, And by leave the Director of Public Prosecutions shall, by himself or by his by the Public assistant, or by such representative as hereinafter mentioned,
attend at the trial, and it shall be the duty of such director to obey any directions given to him by the Election Court with respect to the summoning and examination of any witness to give evidence on such trial, and with respect to the prosecution by him of offenders, and with respect to any person to whom notice is given to attend with a view to report him as guilty of any corrupt or illegal practice. It shall also be the duty of such director, without any direction from the Election Court, if it appears to him that any person is able to give material evidence as to the subject of the trial to cause such person to attend the trial, and with the leave of the Court to examine such person as a witness.” As the Director of Public Prosecutions will have little knowledge of the constituency, will be regarded with disfavour by the class of persons who can give evidence of corrupt practices, and will not be allowed to see the inside of counsel's briefs, it may be doubted whether this section will be found to be very efficacious or far-reaching in its operation.
SECTION V.—THE AWARDING AND TAXATION OF Costs.
Costs in the discretion of the Court.
The costs of election proceedings are in the discretion of the Court, which will disallow any costs occasioned by “vexatious conduct, unfounded allegations, or unfounded objections,” by
either party, and have regard to the “ discouragement of any needless expense” by throwing the same on the author of it. Parliamentary Elections Act, 1868, Section 41. The general rule is that the costs follow the event, but “the Usually event” may be distributive when the seat is claimed. follow the Thus, where the petitioner succeeded in unseating the respondent and then withdrew his claim to the seat, he got no costs occasioned by the latter claim. Gravesen:1, 44 L.T., 64, 3 O'M. & H., 81, and in the Petersfield Case, 2 O'M. & H., 94, where the charges of corrupt practices by agents failed, the petitioner had to pay the costs of those charges, irrespective of the result of the scrutiny. The petitioner, though successful, may be left to bear his Exceptions to
the rule, own costs where (1) the petitioner is a man of straw, put up by others in order to avoid liability for costs (Poole, 2 petitioner O’M. & H. 123; 31 L.T., 171), but not where the petition is a bonâ fide petition by the petitioner, however poor he
may be (Wigan, 4 O’M. & H., 1). (2) where the particulars were exceedingly voluminous, and made many charges which failed (Westbury 1 O'M. & H., 50; 20 L.T., 17; Norwich, 2 O’M. & H., 42). (3) where the petitioner has himself acted illegally or improperly. (Wallingford, 1 O’M. & H., 57; Longford, 2 O’M. & H., 7.)
Or a successful petitioner may be ordered to bear a part of the costs. At Bewdley, 44 L T., 283, 3 O’M. & H., 145, he was ordered to pay the costs of unfounded charges of treating. At Boston (2) 44 L.T., 289, 3 O'M. & H., 150, he was ordered to pay the costs of charges which he withdrew, and no costs were allowed on either side in respect of charges not pruven. At Gravesend, 44 L.T., 64, 3 O'M. & H., 81, where the seat was claimed, and the election was avoided, and the claim to the seat abandoned, whereupon, by a mistake, the recriminatory charges were proceeded with, no costs of the recriminatory charges, or of the scrutiny, or of charges not proven, were allowed on either side.
A successful respondent has been deprived of his costs Where altogether, when there was reasonable and probable cause
succeeds. for presenting the petition. Westminster, 1 O'M. & H., 89;
20 L.T., 228. Coventry, 1 O'M. & H., 97 ; 20 L.T., 405, or when the respondent and his agents had committed illegal acts. Bolton, 2 OM, & H., 138; 31 L.T., 194. Where the respondent failed to prove some of his countercharges, but was successful on the whole, the petitioner was ordered to pay two-thirds of his costs. (Berwick, 44 L.T.,
289; 3 O'M. & H. 178.) Where
Where the petition is caused by the errors of the returning returning officer in officer, he is not, in the absence of wilful misconduct, ordered fault. to pay costs. (Hackney, 2 O'M. & H., 77. Wigtown, 2 O'M.
& H., 232. Woodward v. Sarsons, L.R., 10 C.P., 738; 44 L.T., C.P., 293; 32 L.T., 867. Mayo, 2 0’M. & H., 192.) Where the conduct of the returning officer is unsuccessfully impeached, the losing party will generally be ordered to pay
his costs. (Worcester, 3 O’M. & H., 186.) Agreement
Effect has been given to an agreement between the parties that costs shall be asked that, whatever the result, neither shall ask for costs.
The old rules relating to the incidence of costs were found to bear hardly upon innocent candidates, and the legislature has introduced a new rule, which will, in many cases, go far
to relieve innocent parties of the burden of costs, and impose Guilty persons that burden on persons on whom it should in justice be and constituencies placed.
By Section 44 of the Act of 1883, it is enacted :ordered to
“ (1.) Where upon the trial of an election petition respecting an election for a county or borough, it appears to the Election Court that a corrupt practice has not been proved to have been committed in reference to such election, by or with the knowledge and consent of the respondent to the petition, and that such respondent took all reasonable means to prevent corrupt practices being committed on his behalf, the Court may make one or more orders with respect to the payment either of the whole or such part of the costs of the petition as the Court may think right, as follows :
• (a.) If it appears to the Court that corrupt practices corruption general.
extensively prevailed in reference to the said election, the Court may order the whole or part of the costs to be paid by the county or borcugh; and
“(6.) If it appears to the Court that any person or persons When indiis, or are proved, whether by providing money, or
largely otherwise to have been extensively engaged in engaged in
corruption. corrupt practices, or to have encouraged or promoted extensive corrupt practices in reference to such election, the Court may, after giving such person or persons an opportunity of being heard by counsel or solicitor, and examining, and crossexamining witnesses to show cause why the order should not be made, order the whole or part of the costs to be paid by that person or those persons, or any of them, and may order that if the costs cannot be recovered from one or more of such persons, they shall be paid by some other of such persons,
or by either of the parties to the petition, and * (2.) Where any person appears to the Court to have been In solitary
guilty of the offence of a corrupt or illegal practice, corrupt or
person.” The order under this section may be made only by the By what judges who try the election petition, or by the High Court, if the matter comes before the High Court.-Section 64 of the Act of 1883. But there is no jurisdiction to make an order under Section 44 at all, unless two events, namely, that no corrupt practice, " by or with the knowledge of the re- When jurisspondent,” is proved, and that the respondent took all reason- diction arises. able means to prevent corrupt practices. Apparently the jurisdiction would not be destroyed if the respondent had committed or encouraged illegal practices or illegal payments or the like, although in that event the Court would have little disposition to relieve an unsuccessful respondent of the liability to pay costs.
The jurisdiction conferred by the section is not large. If
Inquiries precedent to order.
corrupt practices extensively prevailed, the Court may throw the costs of the petition on the constituency. Having regard to the language of Sub-section 3 of Section 44, probably “costs of the petition ” will be held to include the costs of both parties.
If the author of extensive corruption can be ascertained, the Court may order him to pay the costs of the petition, but only after the propriety of making the order has been tried out with all the machinery of counsel, solicitors, examination and cross-examination. In fact, after the petition has been heard there may be another trial to decide whether a third party is to pay the whole or any part of the costs, and as the petitioner and respondent will be deeply interested in the result of this latter trial, they must remain and see it out. In fact, being interested parties, they ought to be heard in or
The last case is that in which it shall appear to the Court that some stranger to the petition has been guilty of a corrupt or illegal practice, in wbich case he may be ordered to pay, not the costs of the petition, but only the costs of any proceedings before the Court in relation to those offences, e.g., of his prosecution before the Court. Such a person cannot be heard by his counsel as of right, or examine or cross-examine witnesses with a view of preventing the making of the order. He is only entitled to make a statement.
It is probable that in every case in which a respondent would have been ordered to pay the costs of a successful petition, he will still be ordered to do so in the event of a stranger to the petition ordered to pay them failing to
comply with the order. Expenses of As between a witness whose expenses were allowed by the witnesses.
judge and the party who subpwnaed him, the registrar, or if be is incapacitated, the judge of the Election Court will ascertain and certify the amount to be paid to the witness. Gen.
Rules (Parl.), 1875, r. 5. Enactments The taxation of costs is regulated by section 41 of the regarding the
Parl. Elections Act, 1868, and by Section 44 Sub-section 3 of the Act of 1883. The former section enacts, “ That all
taxation of costs.