between party and party, the treasurer of the borough applied for payment of a moiety of the penalties to be carried to the borough fun 1. This payment not having been made, an action for money had and received was brought by the corporation. It was held that if expenses beyond the costs between party and party had been in urred, the corporation were entitled to half the penalties ie-s these expenses. In the action, it was sufficient prima facie for the corporation to prove the recovery and receipt of the penalties and taxed costs, and it was for the defendant to prove what extra costs, if any, there had been. Mayor of Harwich v. Gant, 5 E. & B. 182; Jur., N.s. 708. Revival of former Law on expiration of Ballot Act. 76.-(1.) If the Ballot Act, 1872, ceases to be in force, so much of this Act as directs that the poll at a contested election of councillors shall be conducted as the poll at a contested parliamentary election is by the Ballot Act, 1872, directed to be conducted, and as applies provisions of the Ballot Act, 1872, to a poll at a contested election of councillors, shall forthwith cease to be in force, and thereupon. the enactments in Part IV. of the Third Schedule shall revive and be in force. (2.) But this cesser and revivor shall not affect any act done, right acquired, or liability or fine incurred, or the institution or prosecution to its termination of any proceeding in respect of any such right, liability, or fine. The Ballot Act, 1872 (35 & 36 Vict., c. 33), is by the 45 & 46 Vict., c. 64, continued until the 31st December, 1883. PART IV. CORRUPT PRACTICES AND ELECTION Corrupt Practices. Definitions. 77. In this Part "Bribery," "treating," " undue influence," and "personation," include respectively anything done before, at, after, or with respect to a municipal election, which if done before, at, after, or with respect to a parliamentary election would make the person' doing the same liable to any penalty, punishment, or disqualification for bribery, treating, undue influence, or personation, as the case may be, under any Act for the time being in force with respect to parliamentary elections: 1 'Corrupt practice" means bribery, treating, undue influence, or personation : 2 "Candidate" means a person elected, or having been nominated, or having declared himself a candidate for election, to a corporate office: 3 "Canvasser" means any person who solicits or persuades, or attempts to persuade, any person to vote or to abstain from voting at a municipal election, or to vote or to abstain from voting for a candidate at a municipal election : "Voter" means a burgess or a person who votes or claims to vote at a municipal election: "Election court" means a court constituted under this Part for the trial of an election petition : "Municipal election petition" or "election petition" means a petition under this Part complaining of an undue municipal election : "Parliamentary election petition " means a petition. under the Parliamentary Elections Act, 1868: "Prescribed" means prescribed by general rules made. under this Part: "Borough" and "election" when used with reference to a petition mean the borough and election to which the petition relates. 1 For provisions as to bribery, treating, and undue influence in parliamentary elections, see Appendix, pp. 279-288. For definition of "municipal election," see sec. 7. 2 For definition of bribery, treating, and undue influence, see Appendix, pp. 279-282. As to personation, see p. 259. For definition of 66 corporate office," see sec. 7. General Penalties for Corrupt Practices. 78. A person guilty of a corrupt practice at a municipal election shall be liable to the like actions, prosecutions, penalties, forfeitures, and punishments as if the corrupt practice had been committed at a parliamentary election. "Corrupt practice" is defined by sec. 77 as meaning bribery, treating, undue influence or personation. With reference to "corrupt practices" at parliamentary elections, see Appendix, pp. 279-288. In a case in which a person in soliciting the vote of a voter in a municipal election had said, in reply to the objection of the voter that he would lose much time by going to vote, that he "would be remunerated for what loss of time might occur," it was held that this was bribery within the statute. Simpson v. Yeend, L. R., 4 Q. B. 626; 38 L. J., Q. B. 313; 21 L. T., N.s. 56; 17 W. R., 1100. Where a person was guilty of bribery by giving money to five voters at a municipal election, it was held that in each case there was a separate offence, and that the person was liable to a penalty in respect of each offence. Milnes v. Bale, Milnes v. Lea, L. R., 10 C. P. 591; 44 L. J., C. P. 336; 33 L. T., N.S. 174; 23 W. R., 660. In a case where there were three liberal candidates, and it was deemed desirable that only one should go to the poll, a test ballot was taken in order to determine who should stand at the election. The candidate who had the largest number of votes at the test ballot was, at the election, returned as elected. Money and drink were given by his agents to certain voters at the test ballot, but no bargain was expressly or impliedly made as to the votes of these persons at the election; nor did the voters understand or suppose that their votes at the election were bought or engaged, or in any way bargained for. The giving of the money and drink under these circumstances was held to be bribery and treating. Britt v. Robinson, L. R., 5 C. P. 503; 39 L. J., C. P. 265; 23 L. T., N.S. 188; 18 W. R., 166. It would appear that this clause has the effect of incorporating the provisions of sec. 23 of the 17 & 18 Vict., c. 102, and renders it an offence to give refreshments to voters at a municipal election. Hargreaves v. Simpson, L. R., 4 Q. B. D. 403; 48 L. J., Q. B. 607; 41 L. T., N.S. 216. Disqualifications and Avoidance of Election for Corrupt Practices by Candidates. 79.- (1.) Where it is found by the report of an election. court that a corrupt practice has been committed by or with the knowledge and consent of a candidate2 at a municipal election, that candidate shall be deemed to have been personally guilty of a corrupt practice at the election, and his election, if he has been elected, shall be void; and he shall (whether elected or not) during seven years from the date of the report be subject to the following disqualifications: He shall be incapable of— (a.) Holding or exercising any corporate office or municipal franchise, or being enrolled or voting as a burgess : (b.) Acting as a justice or holding any judicial office : (e.) Being employed by a candidate in a parliamentary (f) Acting as overseer or as guardian of the poor. (2.) If any person is on indictment or information found guilty of a corrupt practice at a municipal election, or is in any action or proceeding adjudged to pay a penalty or forfeiture for a corrupt practice at a municipal election, he shall, whether he was a candidate at the election or not, be subject during seven years from the date of the conviction. or judgment to all the disqualifications mentioned in this section. (3.) If after a person has become disqualified under this Part any witness on whose testimony he has become disqualified is, on his prosecution, convicted of perjury in respect of that testimony, the High Court may, on motion, and on proof that the disqualification was procured by means of that perjury, order that the disqualification shall cease. 1 For provisions as to "election court see secs. 92 and 93. 2 For definition of the terms "corrupt practices" and "candidate," see sec. 77. 3 In Re the Launceston Election Petition, it was held that bribery by a candidate at an election, though it renders his election void if he be found guilty of it on petition, does not incapacitate him for election in the sense that the votes given for him by voters after notice of disqualification will be thrown away, no disqualification in that sense of the term arising until after the candidate has been found guilty of bribery on petition; when, therefore, there were two candidates, one of whom was unseated on petition for corrupt practices and the other candidate claimed the seat on the ground that the votes given to the unseated candidate were given with knowledge of his disqualification and were consequently thrown away, it was held that the petitioner was not entitled to the seat (Drinkwater v. Deakin, L. R., 9 C. P. 626). 4 In Grant v. Overseers of Pagham, L. R., 3 C. P. D. 80; 47 L. J., C. P. 59; 37 L. T., N.S. 404; 26 W. R., 169, it was held, with reference to the 31 & 32 Vict., c. 125, s. 43, that in order to disqualify a person for being registered as a voter by reason of personal bribery, or bribery by an agent with his knowledge and consent, he must be found, by the report of the election judge under sec. 11, sub-sec. 14, to have been so guilty. It is not sufficient that the judge states facts from which personal bribery or other corrupt practice might be inferred. Disqualifications and Avoidance of Election for Corrupt Practices by Agents, and for Offences against this Part. 80. If it is found by an election court that a candidate has by an agent been guilty of a corrupt practice at a municipal election, or that any offence against this Part has been committed at a municipal election by a candidate, or by an agent for a candidate with the candidate's knowledge and consent, the candidate shall, during the period for which he was elected to serve, or for which, if elected, he might have served, be disqualified for being elected to and for holding any corporate office in the borough, and if he was elected his election shall be void. For definition of the terms "candidate," "municipal election," and "corporate office, see secs. 7 and 77. As to 'corrupt practices" and offences against this Part, see secs. 77, 78, 82, and 83. Avoidance of Election for General Corruption. 81. A municipal election shall be wholly avoided by such general corruption, bribery, treating, or intimidation at the election as would by the common law of Parliament avoid a parliamentary election. Paid Agents and Canvassers. 82. (1.) A burgess of a borough shall not be retained or employed for payment or reward by or on behalf of a candidate at a municipal election for that borough or any ward thereof as a canvasser for the purposes of the election. (2.) If any person is retained or employed in contravention of this prohibition, that person and also the person by whom he is retained or employed shall be guilty of an offence against this Part, and shall be liable on summary conviction to a fine not exceeding ten pounds. (3.) An agent or canvasser retained or employed for payment or reward for any of the purposes of a municipal election shall not vote at the election, and if he votes he shall be guilty of an offence against this Part, and shall be liable on summary conviction to a fine not exceeding ten pounds. For definition of the terms "candidate," "canvasser," and "municipal election," see secs. 7 & 77. Payment for Conveyance of Voters. 83. If a candidate, or an agent for a candidate, pays or agrees to pay any money on account of the conveyance of a voter to or from the poll, he shall be guilty of an offence against this Part, and shall be liable on summary conviction to a fine not exceeding five pounds. Prosecutions for Corrupt Practices. 84.-(1.) The costs and expenses of a prosecutor and his witnesses in the prosecution of any person for bribery, undue influence, or personation at a municipal election, with compensation for trouble and loss of time, shall, unless the court otherwise directs, be allowed, paid, and borne as in cases of felony. |