the petitioners, or on their behalf, giving the name of PETITION. their agent, if they have one, or stating that they act for themselves, in either case giving an address at which notices may be left within three miles of the General Post Office rule 9. The master is to send a copy of the petition, together with the name of the agent, and the address, if any, to the returning officer, who is forthwith to publish them: section 7, and rule 12. For form of appointment of agent, see post, p. 652. An agent employed for the petitioner or respondent is forthwith to leave written notice at the office of the master of his appointment to act as such agent, and service of notices and proceedings upon such agent shall be sufficient for all purposes; rule 59. BE RESPON- The person whose seat is sought, or whose election is WHO MAY disputed is the only person who can be made respondent, except in the case of a returning officer being respondent. Thus, in the case of Lovering v. Dawson, L. R., 10 C. P. 711; 44 L. J., C. P. 321; 32 L. T., N. S. 819 (a municipal election case), it was decided that an unsuccessful candidate at an election could not be made respondent against his will. Where, however, the respondent, though a defeated candidate at a municipal election, was de facto in office, and would neither resign nor disclaim the office, the Court held that he was properly made a respondent: Yates v. Leach, L. R., 9 C. P. 605; 43 L. J., C. P. 377. Two or more candidates may be made respondents to the same petition, and their case may for the sake of convenience be tried at the same time, but for all other purposes it is deemed to be a separate petition against each respondent: 31 & 32 Vict. c. 125, s. 22. But it is not necessary that all the successful candidates should be made respondents, even though the ground of the petition is one affecting the validity of the election as a whole: see Line v. Warren, 14 Q. B. D. 73, 548; 54 L. J., Q. B. 146, 291 (a municipal election case), where it was held that a petition was main WHO MAY tainable against three out of four successful candidates, BE RESPON DENTS. on the ground of an erroneous decision of the mayor, A petitioner who has been seated on petition cannot A petition may be presented against the return of a member after his death: Tipperary, 3 O'M. & H. 19; Morton v. Galway, Ir. R., 9 C. L. 173. Returning By section 51 of 31 & 32 Vict. c. 125, where a petition officer. complains of the conduct of a returning officer (e.g., It has been said that there must be wilful misconduct The decision, however, in the former case was that the ruling of a returning officer upon an objection to a nomination paper was not "a complaint of the conduct" of such returning officer. Evidence to implicate a returning officer cannot be given unless charges have been made against him in the petition: Tamworth, 1 O'M. & H. at p. 77. Under 31 & 32 Vict. c. 125, the judges of the Common Pleas (now the Queen's Bench Division; 36 & 37 Vict. c. 66, ss. 16 and 32) have the same powers, jurisdiction, and authority with reference to an election petition and the proceedings thereon, as if the petition were an ordinary cause: section 2. A rota of judges for the trial of election petitions is provided for by section 11; and rule 44 made under that Act further provides that all interlocutory questions and matters, except as to the sufficiency of the security, are to be disposed of by one of them, if practicable, other wise by any judge at chambers: Salford, 19 L. T., INTERN. S. 502. Another exception is made by 42 & 43 Vict. c. 75, s. 2, which requires that an application for the withdrawal of an election petition is to be heard by two election judges; nor has rule 44 any application to interlocutory proceedings under 46 & 47 Vict. c. 51. Jurisdiction under that Act, except as to criminal matters, must be exercised by one of the judges on the rota, the rules contemplated by that section not having been made: 46 & 47 Vict. c. 51, s. 56; Shaw v. Reckitt, [1893] 1 Q. B. 779; 62 L. J., Q. B. 375; 68 L. T., N. S. 688; 41 W. R. 497. No proceedings are to be defeated by any formal objection rule 60. LOCUTORY Notice must be given at the Election Petition Office Notice of. (Room 184, Royal Courts of Justice) of any motion or application to be made to the Court at least two clear days before making such motion or application. In urgent cases, leave to serve short notice of motion will be granted. An appeal from the decision of a judge in matters of Appeal. practice and procedure would now seem to lie to the Court of Appeal, and then only by leave of the judge or of the Court of Appeal: 57 & 58 Vict. c. 16, s. 1, set out post, p. 626. But upon questions of law the former practice seems unaffected, and such appeal would lie to a Divisional Court composed of election judges. No appeal lies from the decision of that Court unless leave to appeal is granted by it: 44 & 45 Vict. c. 68, s. 14, set out post, p. 522; and Shaw v. Reckitt, [1893] 2 Q. B. 59; 62 L. J., Q. B. 375; 69 L. T., N. S. 327; 41 W. R. 497. A copy of every order (other than an order giving Copy of further time for delivering particulars, or for costs only), or, if the master so directs the order itself, or a duplicate thereof, also a copy of every particular delivered, is to be forthwith filed with the master, and produced at the trial by the registrar, stamped with the official seal. order. LOCUTORY TIONS. INTER- Such order and particulars are to be filed by the party APPLICA- obtaining the order and delivering the particulars respectively rule 69. The latter part of the rule (see post, p. 639) is peculiarly worded, but the above appears to be its meaning. NOTICE OF SERVICE OF Within five days of the presentation of the petition PETITION (exclusive of the day of presentation), the petitioner is ON RESPON- to serve notice of the presentation, and of the nature of the proposed security, on the respondent, together with a copy of the petition : 31 & 32 Vict. c. 125, ss. 8 and 21, and rules 13 and 14. DENT. Evasion of service. Compliance with similar provisions was held to be a condition precedent to the hearing of a municipal petition and not mere matter of procedure, non-compliance with which could be rectified by the Court: Williams v. Mayor of Tenby, &c., 5 C. P. D. 135; 49 L. J., C. P. 325; 42 L. T., N. S. 187. The petitioner or his agent must, immediately after notice of the presentation of a petition and of the nature of the proposed security have been served, file with the master an affidavit of the time and manner of service thereof rule 70. Where the respondent has named an agent or has stated that he intends to act for himself, and has given an address within three miles of the General Post Office pursuant to rule 10, the service may be by delivery to the agent, or by posting it in a registered letter to the address given: rule 14. In other cases the service must be personal, unless a judge on application within five days after the presentation, is satisfied that all reasonable efforts have been made, including, when practicable, service upon an agent for election expenses, in which case the judge may order that what has been done shall be considered sufficient service, subject to such conditions as he may think reasonable: rule 14. In case of an evasion of service, sticking up a notice in the master's office of the petition having been pre NOTICE OF sented, stating the petitioner, the prayer, and the nature SERVICE OF of the proposed security, is, if so ordered by a judge, to PETITION be deemed equivalent to personal service: rule 15. ON RESPON DENT. FOR COSTS. At the time of the presentation of the petition, or within three days afterwards, security has to be given SECURITY on behalf of the petitioner for the payment of all costs, charges, and expenses that may become payable by him to : 1. Any person summoned as a witness on his behalf, or, 2. To the member whose election or return is complained of: 31 & 32 Vict. c. 125, s. 6 (4). It is to be to the amount of 1,000l., and may be given either by recognizance, to be entered into by not more than four sureties, or by deposit of money, or partly in one way and partly in the other: ibid., sub-section (5). It has been decided that, however many respondents there may be, security need not be given for more than 1,000l. for each petition: Pease v. Norwood, L. R., 4 C. P. 235; 38 L. J., C. P. 161. Such deposit is to be by payment into the Bank of By deposit. England, to the "Parliamentary Election Act, 1868, Security Fund" (which is vested in, and drawn upon. by, the Lord Chief Justice), and a bank receipt or certificate for the same is forthwith to be left at the master's office: rule 16. This receipt or certificate is to be filed by the master, who is to keep a book open to the inspection of all parties concerned in which the amount shall be entered: rule 17. nizance. See, as to the disposal of surplus, &c., rules 63-68. Where security is given by recognizance, it must By recogcontain the name and usual place of abode of each surety, with such sufficient description as shall enable him to be found or ascertained: rule 19. A form of recognizance is given post, p. 631. The recognizance Acknowmay be acknowledged before a judge or the master in ledgment. |