1875

FELL

V.

BIDDOLPH.

time of his decease." The husband left nine such surviving him; two of them died during the life-time of the testatrix, one before and one after the date of the will: and it was held that the words "living at the time of his decease" were insufficient to take the case out of the general rule that, in gifts to a class, the class must be ascertained at the death of the testator, and that accordingly the seven who survived the testatrix took the whole residue.

This case no doubt shews that the class is to be ascertained at the death of the testator; but it is a strong case to shew that, in gifts to a class, the class as a whole is to be regarded, even though such rule conflicts with the express words of the testator; some of those included in the bequest there being incapable of taking.

In the present case, the individual members of the class which takes under the will are not ascertainable at the death of the testator; for, as was observed by the counsel for the defendants, there being life-estates to the parents to take effect before the devise in question to the children, a child or children might be born after the period of the death of the testator, who would take under the devise.

Upon the whole, we are of opinion that, upon the current of authority and the reason of the decisions, so far as we can deduce it, the devise was to a class, and to such a class as would take not separate shares the value of which would vary with their number, but in undivided shares, the whole portion devised, and that this is to be taken by those who at and after the testator's death came within the limits of the class, and who were capable of taking.

This decision renders the second point, as to the attestation of Sarah Armstrong, immaterial in this ejectment, as we hold that there has been no intestacy, and that the plaintiffs are not entitled to recover for any part claimed; and therefore this rule will be discharged.

Rule discharged.

Attorneys for plaintiffs: Field, Roscoe, Francis, & Osbaldeston, for Lowndes, Liverpool.

Attorneys for defendants: Milne, Riddle, & Mellor.

LOVERING, PETITIONER; DAWSON, WALKER, AND POULTON,

RESPONDENTS.

MAIDENHEAD MUNICIPAL ELECTION PETITION.

(No. 1.)

Corrupt Practices (Municipal Elections) Act, 1872 (35 & 36 Vict. c. 60), s. 13, &c.—Parties to Petition-Unsuccessful Candidate not to be made a Respondent against his Will.

At a municipal election A., B., and C. coalesced for the purpose of canvassing the burgesses. A. and B. were elected, C. was not. A petition was presented against the return of A. and B., and C. was joined as a respondent. At the trial, C., by his counsel, objected to be a respondent; but the commissioner allowed the trial to proceed upon the petition as presented, and in the result he found that A. had been guilty of personal bribery, and that B. and C. had been guilty of bribery through their agents.

Upon a special case stated for the opinion of the Court:-
Held, that C. was not properly made a respondent.

AT the last municipal election of town councillors for the town of Maidenhead there were several candidates, of whom Poulton, Dawson, and Walker were three, and these three coalesced for the purpose of canvassing the burgesses. Dawson and Walker were duly elected, but Poulton was not.

A petition was presented, under the Municipal Elections (Corrupt Practices) Act, 1872 (35 & 36 Vict. c. 60), against the return of Dawson and Walker; and Poulton was also included in that petition as a respondent.

At the trial of the petition, a preliminary objection was taken by the counsel for Poulton to that gentleman being joined with the other respondents in the petition, on the ground that the Act only contemplated a petition against those persons who were actually returned to office, and that the word "candidate" employed in the Act could not be said to apply to those who, though candidates for election, had not been returned to office; and he relied upon several sections of the Act.

The counsel for the petitioner contended that the word "candidate" extended to all persons who were candidates for election, and that, wherever the word "candidate" was used in the Act, it must be read according to the interpretation clause of the Act.

1875

May 24.

1875

At the trial the commissioner found that Dawson had been LOVERING guilty of personal bribery, and that Walker and Poulton had been guilty of bribery through their agents.

v.

DAWSON.
No. 1.

This case was stated at the instance of Poulton's counsel, for the purpose of asking the Court to determine whether, under the Municipal Elections (Corrupt Practices) Act, 1872, the respondent Poulton was properly made a respondent in the petition.

In the event of the Court being of opinion that he was so properly joined, then he was under the order of the commissioner to pay his proportion of the costs, in common with Dawson and Walker, to the petitioner William Lovering, of and incidental to the petition. But, in the event of the Court being of opinion that Poulton was improperly joined as a respondent, then the commissioner ordered that he do receive his costs of and incidental to his defence. (1)

H. D. Greene (J. O. Griffits with him), for the petitioner. The 35 & 36 Vict. c. 60 professes to have been passed for two purposes, -the one, to make provision for the better prevention of corrupt practices at municipal elections,-the other, to establish a tribunal for the trial of the validity of such elections; and this double purpose is carried out by the arrangement of clauses. The first part of the Act begins with the interpretation clause, s. 2, which provides that "the following words and expressions shall respectively be construed as follows,”—Amongst others, “office" means the office of mayor, alderman, councillor, or assessor of a borough or ward of a borough; "election" means an election to an office; and "candidate" means any person elected, or who has been nominated or has declared himself to be a candidate for election to an office, the same definition as is found in the Corrupt Practices Act, 17 & 18 Vict. c. 102, s. 38.

(1) The petition charged bribery, treating, and corrupt practices generally against the three respondents; and the prayer was "that it might be determined that the said election and return of the said Robert Walker and William Dawson was null and void, and that they were not duly elected; and that the said Robert Walker,

The 4th section enacts that, William Dawson, and Richard Swallow Poulton were and are disqualified for being elected to and for holding any municipal office in the borough for which the said election was held, and that each of them is subject to the disqualifications in the said statute mentioned and set forth."

1875

v.

DAWSON.

No. 1.

" where it is found in the report of an election court acting under the provisions of this Act that any corrupt practice has been LOVERING committed by or with the knowledge and consent of any candidate at an election, such candidate shall be deemed to have been personally guilty of corrupt practices at the election; and his election, if he has been elected, shall be void, and he shall (whether he was elected or not) during seven years from the date of the report be subject to the following disqualifications,"―amongst others, "He shall be incapable of holding or exercising any municipal office or franchise, or of having his name placed on the register, or voting at any municipal election." The 5th section deals with the case of corrupt practices by agents: it enacts that, "if it is found by an election court acting under the provisions of this Act that a candidate has by an agent been guilty of any corrupt practices at an election, or that any act hereinafter in this Act declared to be an offence against this Act has been committed at an 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 municipal office in the borough for which the election was held, and, if he was elected, his election shall be void." The disabilities, therefore, attach to an unsuccessful candidate. If so, he may be made a respondent in a petition; for, it would be manifestly unjust that a man should be subjected to penalties and disqualifications without having had an opportunity of defending himself.

[LORD COLERIDGE, C.J. Under the old parliamentary election law, an unsuccessful candidate might be scheduled, and, though not a party to the petition, he was allowed an opportunity of answering. Sect. 43 of the Parliamentary Elections Act, 1868, 31 & 32 Vict. c. 125, corresponds with ss. 4 and 5 of this Act: and s. 45 enacts that "any person, other than a candidate, found guilty of bribery in any proceeding in which, after notice of the charge, he has had an opportunity of being heard, shall, during the seven years next after the time at which he is so found guilty, be incapable of being elected to and sitting in Parliament," and shall also be subject to certain other disabilities. The second division of the Act provides a mode of questioning the propriety of the election. Sect. 12

1875 LOVERING

v.

DAWSON.
No. 1.

deals only with the case of a successful candidate. Sect. 13 provides for the presentation and the form of the petition, and also for the persons who may be parties to it. An unsuccessful candidate may be a petitioner: subs. 1. By subs. 9 it is provided that "two or more candidates may be made respondents in the same petition, and their cases may 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." "Candidate" there must mean a candidate as defined by the interpretation clause, i.e. "a person elected, or who has been nominated or has declared himself a candidate for election."

GROVE, J. It is to be remembered that that is a subsection to a clause which is dealing with "a petition complaining of an undue election."]

In Yates v. Leach (1), this Court held that Leach, although not returned as a town-councillor, might still properly be made a respondent.

[LORD COLERIDGE, C.J. He was de facto in the office, and he would neither resign nor disclaim, and therefore we held that it did not lie in his mouth to say that he was not elected.]

Under subsections 4 and 5 of s. 15, the certificate and report of the commissioner as to corrupt practices might include corrupt practices by an unsuccessful candidate. As to the effect of the report, see Drinkwater v. Deakin. (2) There could be no hardship in making such a person a respondent; whereas, great hardship would be inflicted upon him as well as upon the petitioner if he might not be joined; for, if not a party to the petition, he would have no opportunity of defending himself against any charge of corrupt practices which may be brought against him, subs. 3 of s. 13 only applying to parties and witnesses; and the petitioner would have no remedy against him for his costs. Besides, he is not obliged to defend, though made a respondent: he may withdraw, under the provisions of s. 18. The form of petition given in Rule 5 of M. T. 1868, is not conclusive: one "to the like effect" may be adopted. Poulton having coalesced with the other respondents in canvassing the burgesses, his interest and his liabilities became identical with theirs.

(1) Law Rep. 9 C. P. 605.

(2) Law Rep. 9 C. P. 626.