Court, after the abandonment of a claim to the seat at a trial before an election judge, and the subsequent election of the claimant, held that the petitioner against him might give evidence of corrupt practices by himself and his agents at the previous election, although they might have been given in evidence in support of recriminatory charges at the previous trial, where the now sitting member was petitioner.

It was further contended that, although the Court might not have jurisdiction to add new matter to a petition, it might expunge on proper grounds shewn.

It was contended contrà, that, without going the length of saying that the Court or a judge might not have jurisdiction to allow the addition or withdrawal of certain allegations in an election petition, it could not permit the withdrawal of a distinct prayer, such as that claiming the seat; that this would be analogous to if not within the sections of the Act and the rules relating to the withdrawal of an election petition; that such withdrawal, if permissible at all, should be guarded by similar provisions, and not allowed by the Court upon mere application and affidavits; and that the respondent ought not to have his right to adduce recriminatory evidence taken from him by such an application as this. We were of opinion that the arguments for the respondent were well founded, and that the application should be refused; and, as the matter pressed, we announced our decision to that effect, and we now proceed to state the main grounds on which it proceeded.

It will be observed that the 2nd section of the Act above alluded to states that the powers there given shall be subject to the provisions of the Act; and we think it clear that the jurisdiction conferred by the Act cannot be in all respects the same as that of the Court in ordinary causes. Numerous provisions of the Act have reference not merely to the individual interests or rights of petitioners or respondents, but to rights of electors, of constituencies, and of the public, in purity of election and in having the member seated who is duly returned by a majority of proper votes. It appears to us also that the scope of the Act is, that petitions should not be mere pleadings, nor framed for the purpose of intimidating or in any way inducing the respondent to VOL. I.

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abandon his seat; still less, of course, should they be collusive; but that they should be real, well considered, and not lightly withdrawn either in whole or in part: see ss. 5, 6, 8, s. 11, subss. 14, 15, 16, and ss. 20, 35 to 48, and other parts of the Act.

By s. 5 of the Act, a petition may be presented by a person who voted or had a right to vote at the election, or by a person claiming to have a right to be returned or elected. By subs. 13 of s. 11, the judge is to determine not merely whether the member whose return or election is complained of, but whether any or what other person was duly returned or elected; and s. 53 speaks of a petition complaining of an undue return and claiming the seat for some person. These sections shew that not merely may the candidate who is not returned claim the seat, or, in other words, claim to have been duly elected, but that any other voter might claim the seat for a candidate who has not been returned; and claims have been so made, as in Stevens v. Tillett (1) and other cases.

This right of petitioning shews that the Act contemplates, in regard to petitions, not merely the rights of candidates not returned, but the rights of the constituency to insure that the person really elected should be their member; and this without the cost and disturbance of a new election, as the judge's decision in favour of such claim is final: Taunton Case. (2)

It appears to us that it would be an infringement of this right, if, a petition having been presented by one person (in this case a candidate) claiming the seat, the claim to the seat could be withdrawn by the mere motion of the person presenting it, after the twenty-one days, when no other petition could be presented, and thus the voters be prevented from claiming the seat for one who may be the duly-elected representative; or, on the other hand, from shewing by means of the recriminative charges which put in issue the claim, that the claimant is not a person entitled to the seat by that election, or that he is disqualified for future elections; such withdrawal not being accompanied by the power to substitute another person as petitioner, by means of which the inquiry might be gone into at the trial. A right to have an election petition proceeded with though one object of it is attained, is recognised

by s. 18 of the statute, which provides that an election petition

(1) Law Rep. 6 C. P. 147.

(2) Law Rep. 4 C. P. 361.

shall be proceeded with, notwithstanding the acceptance by the respondent of an office of profit under the Crown.

It appears to us that the withdrawal of this portion of the prayer of the petition is in pari materiâ with, even if it is not within, the provisions of the Act relative to the withdrawal of a whole petition. We see no reason why the prayer claiming the seat for some one might not form the subject of a separate petition from that which is directed against the return of the sitting member; and, if so, it would be within the provisions of s. 35 and the rules 45 et seq. carrying out those provisions, which provide inter alia for due notices to be given to the constituency and for the substitution by leave of the judge of another person in place of the petitioner. If this be so, and these sections and rules apply to a petition simply claiming the seat for some person, we see no reason why they should not apply to such claim when the prayer involving it is joined with another or other prayers; and if, in the latter case, by reason of the words "in whole or in part" not occurring in the provisions of the Act as to withdrawal of petitions, applications such as the present do not fall within such provisions, we see no reason why, at all events, the election judges may not, under s. 25, make rules for properly guarding the interests of the particular constituencies and of the public in respect of such applications. We, however, incline to think, although it is not necessary to decide this point in the present case, that "an election petition under the Act," s. 35, is not the less an election petition because it is joined in one document with another petition; and, so, the provisions as to withdrawal apply to the present case. By 8. 22, two candidates may be made respondents to the same petition; and this case may for the sake of convenience be tried at the same time, but "for all the purposes of this Act such petition shall be deemed to be a separate petition against each respondent." This section shews that two petitions may be joined in one document and tried at one time. By s. 26 it is provided that, “so far as rules framed under s. 25 do not extend, the principles, practice, and rules on which committees of the House of Commons have heretofore acted in dealing with election petitions shall be observed, so far as may be, by the Court and judge in the case of election. petitions under this Act."

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It therefore becomes desirable to see what has been the mode in which election committees have dealt with cases analogous to the present.

In the Clare Case (1) recriminatory evidence was allowed to be given against a candidate for whom the seat was claimed, though the claim to the seat was abandoned. So also in the Coventry Case (2) and other cases cited in Rogers on Elections, ed. 1863, p. 470. The New Windsor Case (3), cited in the present case by the learned counsel for the petitioner, does not appear to conflict with the other decisions, as the committee there allowed recriminatory evidence to be given against a petitioner who had abandoned his seat. The Malden Case (4) was also relied on for the petitioner. In that case there were three petitions. The second petitioner, who charged bribery and treating against the sitting members, and claimed the seat for himself, wholly withdrew his petition; and what the committee decided was, to decline to proceed upon the application of a third petitioner who alleged corrupt practices against the second petitioner, the committee having unseated the sitting member on the first petition. This decision does not appear to us substantially to conflict with the other decisions of election committees, as tribunals of this description must have some discretion as to where inquiries are to stop.

The practice of committees of the House of Commons appears to us therefore to be strongly in favour of not excluding recriminatory evidence by the sitting member where the seat is claimed by the petitioner, and the petitioner afterwards desires to abandon the claim; and the exclusion of such evidence appears to be the only object sought by this application, as, if it were not desired to exclude this, or it were known that no recriminatory evidence would be adduced, the alleged object as to saving cost could be attained by giving the respondent notice that no evidence would be tendered in support of the claim to the seat, and that that claim would not be persisted in at the trial.

The learned counsel for the petitioner fairly adduced the fact that frequently, if not universally, election petitions were presented on the last of the twenty-one days; and, if so, information was not

(1) Wolf. & B. 143.
(2) 1 Peck. 99.

(3) 2 Peck. 187.
(4) 2 P. R. & D. 143.

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given by them of which members of the constituency could avail themselves by presenting in due time another petition, if they Aldridge found the requisite allegations and prayer in the petition presented were unsatisfactory to them. This may present a difficulty in remedying a defect if a prayer such as this joined with another prayer in one document be not within the clauses and rules as to withdrawal; but we do not see that it affords an independent argument in favour of granting this application; and it is a difficulty which may probably be lessened or removed by rules under s. 25.

It is also to be observed that, although petitions may be presented at the last moment, it is commonly known in the county or borough that such petitions are likely to be presented; and, if any suspicion exists that they are sham petitions, means are taken by those who are in earnest to lodge petitions; and the entire withdrawal of collusive petitions is guarded against by the provisions of the Act to which we have alluded.

In one point of view it is an argument against our allowing this prayer to be withdrawn, that, if there be no power under the withdrawal clauses to substitute a person for the petitioner as to this prayer, the constituency will be without means of proving either that the petitioner is the duly-elected member, or to answer his allegation that he is elected, or to shew that he is unfit to serve in a future parliament, he himself having raised this issue by claiming the seat.

We by no means decide that this Court has no power to make amendments in petitions, provided it sees that no injurious or unjust result or that a beneficial result will follow. In Pickering v. Startin (1), the Court of Common Pleas allowed, in the case of a municipal election petition, an amendment by adding two paragraphs relating to matters discovered after the filing of the petition. On the other hand, in Maude v. Lowley (2), an application for an amendment by addition of allegations as to acts committed in other wards besides those named in the original petition was refused by this Court.

We do not enter into the arguments as to the question of the position of the sureties being altered, as the counsel for the peti(1) 28 L. T. (N.S.) 111. (2) Law Rep. 9 C. P. 165.