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(2.) The clerk of the peace of the borough, or, if there is none, of the county in which the borough is situate, shall, if so directed by an election court, prosecute any person for bribery, undue influence, or personation at the election in respect of which the court acts, or sue or proceed against any person for penalties for bribery, treating, undue influence, or any offence against this Part at the election.

Striking off Votes.

85. The votes of persons in respect of whom any corrupt practice is proved to have been committed at a municipal election shall be struck off on a scrutiny.

Personation.

86. The enactments for the time being in force for the detection of personation and for the apprehension of persons charged with personation at a parliamentary election shall apply in the case of a municipal election.

The 6 & 7 Vict., c. 18, contains the following provisions:

For the more effectual detection of the personation of voters at elections, be it enacted, That it shall be lawful for any candidate, at any election of a member or members to serve in Parliament, for any county, city, or borough, previous to the time fixed for taking the poll at such election, to nominate and appoint an agent or agents on his behalf, to attend at each or any of the booths appointed for taking the poll at such election, for the purpose of detecting personation; and such candidate shall give notice, in writing, to the returning officer or his respective deputy, of the name and address of the person or persons so appointed by him to act as agents for such purpose; and thereupon it shall be lawful for every such agent to attend during the time of polling at the booth or booths for which he shall have been so appointed (sec. 85).

That if at the time any person tenders his vote at such election, or after he has voted, and before he leaves the polling booth, any such agent so appointed as aforesaid shall declare to the returning officer or his respective deputy, presiding therein, that he verily believes, and undertakes to prove, that the said person so voting is not, in fact, the person in whose name he assumes to vote, or to the like effect; then, and in every such case, it shall be lawful for the said returning officer, or his said deputy, and he is hereby required, immediately after such person shall have voted, by word of mouth, to order any constable or other peace officer to take the said person so voting into his custody, which said order shall be a sufficient warrant and authority to the said constable or peace officer for so doing: Provided always, that nothing herein contained shall be construed or taken to authorize any returning officer, or his deputy, to reject the vote of any person who shall answer in the affirmative the questions authorized by this Act to be put to him at the time of polling, and shall take the oaths, or make the affirmations, authorized and required of him (sec. 86).

That every such constable or peace officer shall take the person so in his custody, at the earliest convenient time, before some two justices of the peace acting in and for the county, city, or borough within which the said person shall have so voted as aforesaid: Provided always, that in case the attendance of two such justices as aforesaid cannot be procured within the space of three

hours after the close of the poll on the same day on which such person shall have been so taken into custody, it shall be lawful for the said constable or peace officer, and he is hereby required, at the request of such person so in his custody, to take him before any one justice of the peace acting as aforesaid; and such justice is hereby authorized and required to liberate such person on his entering into a recognizance, with one sufficient surety, conditioned to appear before any two such justices as aforesaid, at a time and place to be specified in such recognizance, to answer the said charge; and if no such justice shall be found within four hours after the closing of the said poll, then such person shall forthwith be discharged from custody : Provided also, that if in consequence of the absence of such justices as aforesaid, or for any other cause, the said charge cannot be inquired into within the time aforesaid, it shall be lawful nevertheless for any two such justices as aforesaid to inquire into the same on the next or on some other subsequent day, and, if necessary, to issue their warrant for the apprehension of the person so charged (sec. 87).

That if, on the hearing of the said charge, the said two justices shall be satisfied upon the evidence, on oath, of not less than two credible witnesses, that the said person so brought before them has knowingly personated and falsely assumed to vote in the name of some other person, within the meaning of this Act, and is not, in fact, the person in whose name he voted, then it shall be lawful for the said two justices to commit the said offender to the gaol of the county, city, or borough within which the offence was committed, to take his trial according to law, and to bind over the witnesses in their respective recognizances to appear and give evidence on such trial, as in the case of other misdemeanours (sec. 88).

With reference to these provisions, see also sec. 15 of the Bailot Act, 1872, in Appendix p. 259.

ELECTION PETITIONS.

Power to Question Municipal Election by Petition.

87.—(1.) A municipal election may be questioned by an election petition on the ground

(a.) That the election was as to the borough or ward wholly avoided by general bribery, treating, undue influence, or personation; or

(b.) That the election was avoided by corrupt practices or offences against this Part committed at the election; or

(c) That the person whose election is questioned was at the time of the election disqualified; or

(d.) That he was not duly elected by a majority of lawful votes.

(2.) A municipal election shall not be questioned on any of those grounds except by an election petition.

When the mayor of a borough had improperly allowed an objection to a nomination paper, it was held that the court had jurisdiction to entertain a petition questioning the validity of the election. Budge v. Andrews and others L. R., 3 C. P. D. 510; 47 L. J., C. P. 586; 39 L. T., N.S. 166.

Where a mayor overruled an objection to a nomination with reference to the time when the nomination paper was delivered, it was held that the objection was not one which he was empowered o decide, and that the validity of the

nomination might be questioned on appeal. Howes and Pierce v. Turner and Wright, L. R., 1 C. P. D. 670; 45 L. J., C. P. D. 550; 35 L. T., N.S. 58. In Monks v. Jackson, L. R., 1 C. P. D. 683; 46 L. J., C. P. D. 162; 35 L. T., N.S. 95, appeared that a nomination paper was delivered to the town clerk by an agent of a candidate, and not by the candidate himself, or his proposer or seconder. Objection to the nomination on this ground was taken before the mayor, but it was disallowed by him. It was held that the nomination was bad, and that notwithstanding the decision of the mayor disallowing the ground of objection, the defect was cognizable by the court.

In Burgoyne v. Collins, 30 W. R., 923, it appeared that the four petitioners, with others, were nominated in an election of town councillors-there being four vacancies. P., one of the eight assenting burgesses who subscribed the nominations of the petitioners, after their nomination papers had been delivered to the town clerk, signed, as an assenting burgess, the nomination paper of a fifth candidate which was delivered to the town clerk. On an objection that the nominations of the four petitioners were bad on the ground that P. had subscribed five nomination papers, the mayor decided that the nominations of the four petitioners were void. It was held that the mayor ought not to have entertained the objection, or that if he did he should have decided that the nominations of the petitioners were valid, and were not invalidated by the subsequent irregularity in relation to the additional nomination paper.

With regard to votes given for a candidate who is legally disqualified for election, Blackburn, J., in his judgment in R. v. Mayor of Tewkesbury, L. R., 3 Q. B. 634; 37 L. J., Q. B. 288; 18 L. T., N.S. 851, said: "It was decided in R. v. Hawkins (10 East 211; 3 Dowl. 124) that if an elector having notice of the disqualification of a candidate, chooses to vote for that candidate, it is the same thing as if he did not vote at all. From the illustrations in the cases, it is plain that if an elector knows as a fact that the candidate for whom he is about to vote is disqualified, and yet persists in voting for him, the elector's vote is as utterly thrown away as if he had voted for a dead person." In R. v. Mayor, &c., of Tewkesbury (L. R, 3 Q. B. 629; 37 L. J., Q. B. 288; 18 L. T., N.S. 851), it appeared that at an election of town councillors for a borough not divided into wards, there were four vacancies and five candidates. B., one of the four who had a majority of the votes, was the mayor, and as he acted as returning officer, was incapable of being elected. On the day of election, shortly after the opening of the poll, printed copies of a notice by M., another candidate, that the mayor was ineligible, and that votes given for him would be thrown away, were posted on the outside of the Town Hall, where the election was held, on the market place, and in various conspicuous places, and printed copies were carried on boards in the public streets. The notice on the Town Hall was taken down by order of a magistrate shortly after it was put up. Notices were also issued by B., warning voters against being deceived by the notice of M. No verbal notice was given, nor was any written or printed notice of disqualification other than as above stated made visible or shown to or served on the voters tendering their votes for B. at the election. It was held on these facts that the votes given for B. were not thrown away so as to make the election fall on the fifth candidate. See also R. v. Hawkins, 10 East 211; 3 Dow. 124; R. v. Cocks, 3 E. & B. 249; 23 L. J., Q. B. 133, and the other cases referred to by Blackburn, J., in R. v. Mayor of Tewkesbury.

See also R. v. Hirons (7 A. & E. 960; 2 Jur., 108). In that case it appeared that at an annual election of councillors in one of the wards of a borough divided into two wards, a majority of votes was declared in favour of a candidate who was an assessor for the other ward, and consequently was ren dered ineligible by the express words of an Act of Parliament. No notice of the ineligibility of this candidate was given, but the Mayor rejected his name from the list published by him of the persons elected, and inserted the name of a candidate having a minority of votes, who accepted the office. The Court granted a quo warranto against the latter candidate.

Presentation of Petition.

83(1.) An election petition may be presented either by four or more persons who voted or had a right to vote at the election or by a person alleging himself to have been a candidate at the election.

(2.) Any person whose election is questioned by the petition, and any returning officer of whose conduct a petition complains, may be made a respondent to the petition.1

(3.) The petition shall be in the prescribed form and shall be signed by the petitioner, and shall be presented in the prescribed manner to the High Court in the Queen's Bench Division, and the prescribed officer shall send a copy thereof to the town clerk, who shall forthwith publish it in the borough."

(4) It shall be presented within twenty-one days after the day on which the election was held, except that if it complains of the election on the ground of corrupt practices, and specifically alleges that a payment of money or other reward has been made or promised since the election by a person elected at the election, or on his account or with his privity, in pursuance or furtherance of such corrupt practices, it may be presented at any time within. twenty-eight days after the date of the alleged payment or promise, whether or not any other petition against that person has been previously presented or tried.3

1 An unsuccessful candidate at a municipal election cannot properly be made a respondent to a petition complaining of the election, although he had coalesced for the purposes of the election with two successful candidates so as to be responsible equally with them for any act done by any of the three in furtherance of the common purpose. Lovering v. Dawson and others, L. R., 10 C. P. 711; 44 L. J., C. P. 321; 32 L. T., N.S. 819.

In a case in which A. and B. were candidates for the office of town councillor, A. obtained a majority of votes over B., and he was declared elected, but being disqualified by reason of his being interested in a contract he refused to serve. B. thereupon claimed to have been elected, and having made the requisite declaration, acted on several occasions. A petition was presented alleging that A. was disqualified and that B. was not elected by a majority. A. and B. thereupon gave notice declaring their intention of not opposing the petition. B., however, refused to resign. The court, on an application that the name of B. might be struck out, refused to interfere on the ground that he was properly made a respondent. Yates and others v. Leach and another, L. R., 9 C. P. 605; 43 L. J., C. P. 377; 30 L. T., N.S. 790.

Where in a borough divided into wards a candidate for the office of town councillor was misdescribed on the burgess roll, and the mayor decided that he was disqualified, and declared his opponent to be elected, it was held that the mayor was not returning officer. Harmon v. Park, L. R. 6 (C. A.), C. P. D. 323; 44 L. T., N.S. 82; 50 L. J. (C. P.), 227.

An erroneous decision upon the validity of a nomination paper given bond

fide by a mayor, whether he be returning officer or not, is not misconduct, and a complaint of such decision as erroneous is not a complaint of his conduct. The mayor cannot in such a case be made a respondent. Harmon v. Park, L. R., 6 (C. A.), C. P. D. 323; 44 L. T., N.S. 82; 50 L. J., C. P., 227. As to the term "prescribed " and rules of procedure, see secs. 77, 100.

3 After the expiration of the time limited for the presentation of the petition, the court have no power to allow any amendment which would substantially be the introduction of a new charge. The petition as presented alleged that burgesses were employed as canvassers for payment and reward in a certain ward, and it was proposed to add the words, and other wards." Maude v. Lawley, L. R., 9 C. P. 165; 43 L. J., C. P. 105; 29 L. T., N.S. 924.

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A petition having been filed on the grounds of treating, bribery, and intimidation, it was found, after inspection of the counterfoils and ballot papers, under an order of the County Court Judge, that the presiding officer had omitted to enter on the counterfoils in certain cases the number of the voter appearing on the burgess roll, and that in other cases tendered ballot papers were improperly used as ballot papers. The court allowed the petition to be amended by adding paragraphs alleging the above facts. Pickering v. Startin, 28 L. T.,

N. S. III.

An order having been made by a judge at chambers for the delivery by the petitioners to the respondent of particulars of all persons alleged to have been bribed and treated, by whom, when, and where; of all persons alleged to have been retained and employed as canvassers, by whom, when, and where; and of all persons to whom money was paid or agreed to be paid on account of conveyance of voters to the poll, and by whom, when, and where such moneys were paid or agreed to be paid—the order was allowed by the court, with the addition of the words, so far as known." Maude v. Lawley, L. R., 9 C. P. 165; 43 L. J., C. P. 105; 30 L. T., N.S. 168; 22 W. R., 649.

A petitioner having omitted to deliver a list of the votes objected to within the time prescribed by the gene: al rules, he applied to the court for leave to give evidence, nunc pro tunc, against the validity of certain votes, and to file a list of objections. It was held that the court had no jurisdiction to grant the application. Neild and Others and Batty, L. R., 9 Č. P. 104; 43 Ľ. J., C. P. 73; 29 L. T., N.S. 747; 22 W. R., 407.

Security for Costs.

89.-(1.) At the time of presenting an election petition or within three days afterwards, the petitioner shall give security for all costs, charges, and expenses which may become payable by him to any witness summoned on his behalf, or to any respondent.

(2.) The security shall be to such amount, not exceeding five hundred pounds, as the High Court, or a Judge thereof, on summons, directs, and shall be given in the prescribed manner, either by a deposit of money, or by recognisance entered into by not more than four sureties, or partly in one way and partly in the other.

(3.) Within five days after the presentation of the petition the petitioner shall in the prescribed manner serve on the respondent a notice of the presentation of the petition, and of the nature of the proposed security, and a copy of the petition.

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