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holder of the county of Carmarthen," a preliminary objec- Preliminary tion to this description, as not being within the words of the statute 28 G. 3, c. 52, was argued before the Committee, but overruled. A second objection was also urged, that having received a bribe he was incompetent to vote at the Election, and had thereby lost his right to petition ; this also failed.(a) Vide other cases in a note to the same effect. (4)
Proof being received that one of the petitioners was not a freeholder, and that the others had voted for the candidate against whom they petitioned, they were not suffered to proceed. (b) A preliminary objection was made, that the petitioner having been convicted of a libel, was disqualified, but it was overruled. (©)
It has been argued that these preliminary objections ought not to prevail before the Committee, since the members of it being sworn to try the matter of the petition, cannot consistently with their oath dispose of the case upon a ground which sets the matter of the petition entirely out of the question. (d) And indeed it might not unreasonably be concluded, that the petition having been received by the House and referred to the Committee, the Committee would be bound in its proceedings by the terms of the statute, which gives it jurisdiction; (e) by which the members are to be sworn " well and truly to try the matter of the
petition referred to them,” and are a Select Committee “ to try and determine the merits of the return or Election
appointed by the House to be that day taken into consi. “ deration.” But the other course of proceeding has been, I believe, invariably adopted, and is perhaps the correct construction, for where it can be shewn that the petitioner either has failed to comply with the previous forms prescribed, or is not within that description of persons who can proceed under these statutes, (incapable of justly claini. ing a right either to vote or to sit,) there, as the foundation of the proceeding fails, the proceeding may be treated as a nullity; there being no legal petitioner, there can be no legal petition the matter of which the Committee can be
bound to try.
There is also a class of cases which may be mentioned
R) Carmarthenshire, 1 Peck, 289. ( East Grinstead, 1 Peck, 337.) A. 291.
(d) E. Grinstead, 1 Peck, 335. ®) Herefordshire, 1 Peck, 210. (*)10 G. 3, c. 16, s. 13.
Where the sitting inem
here, viz. where the sitting member withdraws himself from ber withdraws. before the Commitee, and waves his pretensions to retain
his seat; in such cases the Committee have varied in their mode of proceeding, in some instances immediately declaring the petitioner duly elected, in others requiring him to proceed and establish his claim.
In the Seaford case the sitting members resigned their claim to the seats, their counsel at the same time suggesting to the Committee the propriety of examining the claim of the petitioners, ex parte, before they declared them duly elected. The Committee, however, upon deliberation determined the petitioners duly elected. (4) So where the sitting member withdrew, the petitioner was declared duly elected. (6) And in three cases before the House, previous to the Grenville Act, the same immediate result took place. (C) Butin the cases of Ilchester and Okehampton, 1784, where the sitting members were equally disposed to resign their seats, there were circumstances which induced the Committee to proceed further and inquire into the merits. (d) And in a much later case the sitting member having withdrawn, the Committee determined that the petitioners should proceed with the case. (C)
A material distinction appears between the cases of a sitting member withdrawing himself, and a petitioner being stopped upon a preliminary objection to his right of proceeding; in the latter case the statutable course of questioning the Election is arrested, the petitioner from whose competence to petition the proceeding derives validity, being declared incompetent, the petition becomes a nullity, and cannot therefore affect the right of the sitting member, founded upon an Election and return which has not been legally questioned. Not so the case of the petitioning candidate where the sitting member withdraws ; his claim is founded upon no previous Election or return, his ultimate right to sit rests solely upon the decision of the Committee, and that decision should be made upon some evidence; there is a formal and legal petition before the Committee of which the matter may be tried, and it appears that if the petitioner is declared duly elected, merely because the sitting member withdraws himself, the Committee do not « try the matter of the petition referred to them,” nor “de. “ termine the merits of the return or Election."
3 Lud. 138. (6) Dumbartonshire, Ibid. n. (*) Carlisle, 1741. Radnor, 1761.
Scarboro' 1770. 3 Lud. 140, n. (d)3 Lud. 139.
) Waterford, 1 Peck, 239.
Statement of the Case.
If no preliminary objections are made, or if such as are Counsel to made are disposed of in favour of the petitioner, his senior all the counsel opens the case, and not only the general outline of his proofs, but every fact on which he means to rely should be stated, for it is a general rule that each party is confined in his evidence to the facts stated in the opening speech, that the other may not be surprised by the proof of matters of which no previous intimation had been given.(a)
The counsel was not permitted to call a witness to substantiate a vote which had been tendered at the poll for his client, having made no mention of it in his opening. (6)
It was expressly stated by the counsel in opening, that the offences charged in the petition would be proved against the sitting member personally, and not through the medium of agents; he was not permitted to ask a witness whether A B acted as agent for the sitting member.(C)
But where the following arrangement in the trial was adopted, viz. the interests of one petitioner and one sitting member were identified and conducted by the same counsel, and the like with respect to the other petitioner and sitting member, the counsel, after stating several voters to whom objection would be made, claimed a right to strike off any others who might be impeached in the course of the evidence offered, which, after strong objections from the other side, was allowed by the Committee.(d)
Neither can a counsel, for the purpose of disqualifying a voter, supply by the cross-examination of adverse witnesses, facts which he has omitted to open.(e)
As the evidence is limited to those facts which have been Allegations opened, so such facts only should be opened by the pe- petition. titioner as will fairly support the allegations in the petition, for such only will be received in evidence. Where the petition set forth, that at the last election, &c. A, H.
í (a) E. Grinstead, 1803.1 Peck 338-9.
(c) Caermarthen, 1 Peck, 293. Vid. 3 Lud. 113. & Fra3 451.
(d) Great Grimsby, 1 Peck, 60-3.
high sheriff for the county of H-W.J. and the petitioner, were candidates, it was considered that the mere statement that A. H. was high sheriff at the time of the Election, was but descriptio persona, and not an express allegation or complaint, to raise the objection that he was therefore ineligible.(a)
But proof of bribery by a person not named in the petition may be given under the general allegation of “other “ undue, corrupt, and illegal practices.”(b) Where, however, there are returns by two persons claiming to be returning officers, as the question of return is generally decided first,(C) the person named in the legal return is considered as the sitting member, and is not confined to the allegations in his petition.(a)
If the allegations in a petition raise various questions, the Committee will sometimes try each question separately, instead of hearing the whole case opened and proved at once, arranging the order of trying the questions in the way most conducive to a speedy and correct determination of the case, and this mode bas been followed, not only with consent of both parties, (e) but against the inclination of one, (1) though in some instances, where the separate decision of one' question would not have determined the cause, the Committee have refused to separate the case contrary to the wishes of one of the parties.(6)
In controverted Elections for counties in England and Wales, lists of the voters intended to be objected to, were required, by an annual resolution of the House, to be mutually delivered by the petitioners, and sitting members to each other, giving the several heads of objection, and distinguishing the same against the names of the voters in. tended to be opposed.
And now by stat. 53 G. 3, c. 71, it is required, that in all controverted Elections or returns for Great Britain, all the
Lists coutaining objections to voters
© Petersfield, 1775. 3 Doug. 3. See hampton, 1 Fras. 151, 162, 2 Peck, 4 Doug. 123. 1 Lud. 415. 3 Lud. 523. 405. Ibid. 455. Clifford, 354. 1 Peck, Bristol, 1 Doug. 246. N. Ber. 289. 2 Peck, 3, 4.
wick, 2 Doug. 426. ) 4 Doug. 53.
(1) Seaford, 3 Lud. 35. Honiton, 3 (c)1 Lud. 109. But see the con- Lud. 164. tradictory cases collected in 2 Peck, 8) Downton, 3 Lud. 176. Steyning 370. n.
2 Fras. 403-7. (W) Downton, 3 Lud, 195, 204. Oke
parties complaining or defending, shall deliver such lists Lists contain to the clerk of the House, to be kept in his office for the in- to voters. spection of all parties concerned. Upon controverted Elections for Scotland, or for counties in England and Wales, the lists must be delivered ten days before the day appointed to consider the petition, upon others five days. (a)
No objection can be heard at the trial unless set forth in the list delivered, and even that limitation may be narrowed by a direction from the Committee to a counsel opposing a voter, to name such of the objections specified in the list as he means to rely upon.(b)
It has been holden that the party establishing a vote need not address bis evidence to objections, which though made had not been discussed.() If, however, a counsel in supporting a vote, discloses by his examination in chief, a defect not set forth in the opponent's list, the counsel for the opponent may take advantage of that disclosure, and impeach the vote for that defect.(d)
The Middlesex Committee made a resolution to this effect, that where the description on the poll was insufficient, it might be taken advantage of, though not speci.' fied in the list of objections.(e) But no advantage can be taken of the omission of some collateral act required by the legislature to give validity to a legal instrument from which the voter derives his freehold, as the registry of an annuity deed, unless specified in the list.(f)
It is necessary that these objections should be accurately stated, that the evidence produced to sustain them may have a direct application, since an objection founded upon one cause of disqualification can only be supported by evidence of the same. Thus where the objection was want of possession for a year, evidence to impeach the freehold was rejected.(8) Where the objections were no freehold,” “ freehold as described on the poll,” the Committee would not allow any inquiry as to the year's possession.(h) The objection was “ no freehold;" in the poll book, the voter had given in his freehold as a rent reserved, and evidence
(a) 53 G. 3, c. 71. s. 1.
Middx. 2 Peck, 52. This was
before 53 G. 3, c. 71. ante.
(1) Glost. 148.