PETITION. master of his appointment to act as such agent, and PETITION. service of notices and proceedings upon such agent shall be sufficient for all purposes: rule 14. be a re Any person whose election is questioned by the Who may petition, and any returning officer of whose conduct a spondent. petition complains, may be made a respondent to the petition section 88 (2). : 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, 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 successful candidates may be made respondents to the same petition: section 91 (3). 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, where it was held that a petition was maintainable against three out of four successful candidates, on the ground of an erroneous decision of the mayor, which also applied to the fourth candidate. A petitioner who has been seated on petition cannot afterwards be petitioned against: Waygood v. James, L. R., 4 C. P. 361; 38 L. J., C. P. 195. The erroneous decision of a returning officer upon an objection to a nomination paper was held upon a similar provision in a former Act not to be "a complaint of the conduct" of such returning officer: Harmon v. Park, 6 Q. B. D. 323; 50 L. J., Q. B. 227. It has been held in a parliamentary case upon similar words contained in 31 & 32 Vict. c. 125, s. 51, that there must be wilful misconduct of a returning officer before he can be deemed to be a respondent within that Act: Cirencester, Day's El. Cas. 3. INTER LOCUTORY It is provided by 45 & 46 Vict. c. 50, s. 100 (4), that MATTERS. the High Court shall, subject to this Act, have the same By whom powers, jurisdiction, and authority with respect to a disposed municipal election petition and the proceedings thereon of. Notice of. Appeal in. Copy of order. Notice of as if the petition were an ordinary action within its jurisdiction, and rule 57 provides that all interlocutory questions and matters, except as to the sufficiency of the security, shall be heard and disposed of before a judge, who shall have the same control over the proceedings under the Municipal Corporations Act, 1882, as a judge in the ordinary proceedings of the High Court, and such questions and matters shall be heard and disposed of by any judge of the High Court. But see as to the withdrawal of a petition, post, p. 220. Notice must be given at the Election Petition Office (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. No proceedings are to be defeated by any formal objection rule 69. An appeal lies from the decision of the judge to a Divisional Court. No appeal lies from the decision of that Court unless leave to appeal is granted by it: Line v. Warren, 14 Q. B. D. 548, C. A.; 54 L. J., Q. B. 291; Beresford-Hope v. Lady Sandhurst, 23 Q. B. D. 79, C. A.; 58 L. J., Q. B. 316; Unwin v. McMullen, [1891] 1 Q. B. 694; 60 L. J., Q. B. 400; and see 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 further time for delivering particulars, or for costs only), or, if the master shall so direct, the order itself or a duplicate thereof, also a copy of every particular delivered, shall be forthwith filed with the master, and the same shall be produced at the trial by the registrar, stamped with the official seal. Such order shall be filed by the party obtaining the same, and such particular by the party delivering the same: rule 35. Within five days after the presentation of the petition presenta- the petitioner shall in the prescribed manner serve on PETITION. INTER LOCUTORY the respondent a notice of the presentation of the petition, and of the nature of the proposed security, and a copy MATTERS. of the petition: section 89 (3). Compliance with this tion of provision is a condition precedent to the trial of a petition. petition, and not mere matter of procedure, non-compliance with which can be rectified by the Court: Williams v. Mayor of Tenby, 5 C. P. D. 135; 49 L. J., C. P. 325; 42 L. T., N. S. 187. The period of five days is exclusive of the day of presentation of the petition: rule 13. Where the respondent has named an agent or given Service of an address, the service of a municipal election petition petition. may be by delivery of it to the agent, or by posting it in a registered letter to the address given at such time that, in the ordinary course of post, it would be delivered within the prescribed time: rule 14. In other cases the service must be personal on the respondent, unless a judge of the High Court, on an application made to him not later than five days after the petition is presented on affidavit showing what has been done, shall be satisfied that all reasonable effort has been made to effect personal service and cause the matter to come to the knowledge of the respondent, 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: Ibid. In case of an evasion of service, sticking up a notice in the master's office of the petition having been presented, stating the petitioner, the prayer, and the nature of the proposed security, is, if so ordered by a judge, to be deemed equivalent to personal service: rule 15. 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 36. for costs. At the time of the presentation of the petition, or Security within three days afterwards, security has to be given on behalf of the petitioner for the payment of all costs, INTER charges, and expenses that may become payable by him MATTERS. to: LOCUTORY 1. Any person summoned as a witness on his behalf, or, 2. To any respondent: section 89 (1). It is to be to such amount not exceeding 5001. as the Court or judge may on summons direct, 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: section 89 (2). However many respondents there may be, security need not be given for more than 5007. for each petition: see Pease v. Norwood, L. R., 4 C. P. 235; 38 L. J., C. P. 161 (a parliamentary election case). The security may (unless the High Court or a judge thereof shall otherwise order on summons) be given to any amount not less than 3007.; but the High Court or a judge thereof may, on summons taken out within five days from the service of the notice of the nature and amount of the security, order that the same be increased within a time to be fixed in the order by further security for a further amount, not exceeding with the amount for which security shall have been already given 5007. And in default of compliance with such order, no further proceedings can be taken: rule 26. Such deposit is to be by payment into the Bank of England, to "The Municipal Corporations Act, 1882, 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 (c). (c) As to the decision of claims upon money so deposited, and as to the disposal of the surplus, see rules 18-23, post, p. 547. LOCUTORY Where security is given by recognizance, it must INTERcontain the name and usual place of abode of each MATTERS. surety, with such sufficient description as shall enable Security. him to be found or ascertained, and may be in the form given: rule 25. A form of recognizance is given in the rule, post, p. 547. The recognizance may be acknowledged before a judge or the master in London, or in the country before a magistrate having jurisdiction in the place where it is sworn (d): rule 24; and it must be left at the master's office in the same manner as a petition: rule 26; and may be either one, acknowledged by all the sureties, or separate recognizances by one or more: rule 24. to recog Where security is given wholly, or in part, by recog- Objections nizance, the respondent may object in writing to the nizances. recognizance on the ground that the sureties, or any of them, are insufficient, or that a surety is dead, or cannot be found or ascertained from the want of a sufficient description in the recognizance, or that a person named in the recognizance has not duly acknowledged it: section 89 (4). Notice of such objection, stating the grounds, must be given within five days from the date of service of notice of the petition and of the nature of the security, exclusive of the day of service: rules 27 and 28. It seems that objections other than those mentioned in the above section may be taken within a reasonable time see Oldham, 19 L. T., N. S. 501. Under rule 31, if an objection to the security is allowed, the petitioner may remove it by depositing such sum as the master or judge states by order to be requisite to render the security sufficient, such deposit to be made within five days of the date of the order, not including the day of the date. Any objection is to be heard by the master, subject to an appeal within five days to a judge: rule 29. (d) See Athlone, 19 L. T., N. S. 530. |