C. P.]

66

6

Greene, in reply.-The form of petition is wider than has been suggested, for the words are added to the prayer, as the case may be.' If an unsuccessful candidate were respondent, the declaration prayed for is, that he is disqualified from being a candidate again for seven years. The Act would be very unequal if construed as has been argued on the other side, for it would enable a man to inflict costs by being a petitioner, but would not permit him to obtain costs if wrongly accused and compelled to defend himself.

Lord COLERIDGE, C.J.-I am of opinion that in this case our judgment should be for the respondent. This was a municipal election petition for the borough of Maidenhead, and the petition was presented against three persons who had been candidates at the election, two only out of the three having been elected, and the third having coalesced and stood with them, but having failed. As to the two who were returned as elected no question arises, the sole question for us here to determine is as to the third so-called respondent. At the trial before the barrister appointed to try the petition, this third person, the unsuccessful candidate, took the objection at once that he was not a respondent within the terms of the Act, that he had not been elected, that he had no seat to defend, and so was not properly joined with the other two. The commissioner, who states these facts in the case to us, heard the objection and let the case go on in the form in which it was, leaving for us the question whether it was a good objection or not, and he has found that if Mr. Poulton was properly joined as a respondent he will have to pay certain costs, but if improperly, then his own costs will be paid him by the petitioner. The whole question is to be decided under the Municipal Elections Corrupt Practices Act 1872 (35 & 36 Vict. c. 60), and I am of opinion that he cannot properly be so joined. If the question had been the converse of that which we decided in Yates v. Leech (ubi sup.), it may be that our decision would have been different. It may be that if Mr. Poulton had claimed to be a respondent, and had willingly appeared as such at the trial, we should not have struck him out; it is very possible that we should have allowed him in such a case to remain a respondent, and we are open so to hold if a case arises under such circumstances. Our decision now does not conflict with it, for he would then in the case supposed have taken upon himself the responsibility of being a respondent, he would have assumed to be a person against whose election a petition had been pre

[C. P.

sented. But even if upon request he might be allowed to be a respondent, it by no means follows that the converse proposition is true, and that he can be made against his will a respondent when he has not assented and his conduct not having contributed in any way either to imply or to waive his consent. Now, can he be made a respondent ? The Act of Parliament on which it turns has been fully brought before us, and all the sections bearing even remotely on the point elaborately argued; let us see, therefore, what the Act says. Part 2 begins with sect. 12, which sets out the form in which elections may be questioned, and enacts that it is to be by the court appointed by that Act, and in no other way. The 13th section enacts certain formal matters in reference to the petition, as to the parties to it, the time within which it shall be presented, the security, and so forth, and the prescribed form referred to is to be found in the rules made under the Act. Now, when the section speaks of a petition complaining of an undue election, it manifestly does not contemplate making any person a respondent except a party to the petition, or questioning anything at all except the election, and then the first subsection goes on and speaks of a respondent as including any one or more persons against whose election a petition is presented. Now, that is quite different, as applied to the facts here, from the case in Yates v. Leech, where Leech asserted that he had been elected, and took the oath and acted; he was made a respondent properly, because the Act of Parliament says that his election could be questioned in no other way. There are other portions of the Act equally clear, of which I will mention sub-sect. 9 of sect. 13, which confirms the argument which arises on the provisions already commented on, where there may be two respondents to one petition, for that must mean in a petition complaining of the undue election of the persons against whom the petition is presented. On that short ground I am of opinion that it is only a person whose seat is sought, or whose election is disputed, who is a respondent within the meaning of the Act, or liable to be made such. The two arguments against so holding, which are fair ones for consideration, are, first, that derived from the interpretation clause; and, second. that founded upon the question of costs. The interpretation clause says: Candidate means a person elected, or who has been nominated, or has declared himself a candidate for election to an office," and, no doubt, within the latter portion of the interpretation clause, Poulton was a candidate, for he had declared himself one. But the former part of the section says that the words shall bear the meanings assigned, except where the context otherwise requires; and in sect. 13, sub-sect. 9, the context requires that the second meaning be not assigned to the word candidate. Then there is a fair argument that if a person's acts are questioned, and upon inquiry he is accused of any corrupt practice, he might, by the finding of the commissioner upon such inquiry involving such accusations, be disqualified, and that without having been heard or even, perhaps, having had notice of the charges brought against him. And also that, supposing he is not made a respondent, but knows of the charges, and appears, and successfully defends himself against them, he would, nevertheless, be unable to get any costs from those who had thus wrongly accused him. This, no doubt, is so; but in the case of all elections, and

66

C. P.]

inquiries into their circumstances and results, the subject can hardly be touched without involving some degree of personal injustice, as, for instance, in the case of the disfranchisement of a borough. But the question to consider is, what is the object of these inquiries? Now the chief one certainly is to detect corrupt practices and to punish them; and if in the attainment of a great general good individuals suffer, it is to be regretted, but it still must be so sometimes. The Legislature having this object, enacted these salutary provisions in the Act before us, and whether they be too severe or not does not concern us now; here they are, and we must give effect to them. One answer, therefore, to the suggestion of hardship arising by implication is, that the individual must give way to the public good, and a second answer is that, under the Parliamentary Elections Act 1868, the same injustice, which it is suggested might arise here, happens under the direct enactment of the Act of Parliament, when persons may find themselves disfranchised without any fault of their own, and without having been heard, and where they are totally incapable of recovering costs against any one if they do succeed in clearing their own characters by obtaining a hearing at very great expense. Now this is under the Act of 1868, though there is in that Act one expression, no doubt, "after he has had an opportunity of being heard," which causes some hesitation in my brother Grove's mind, because the same clause does not occur in the Municipal Elections Act 1872, and he doubts, therefore, whether the Legislature intended that a man might be disqualified without being heard. I am of opinion, speaking for myself alone, that the explanation which I gave during the argument, arising from a consideration of the 43rd and 44th sections is correct, but I will not insist upon it now, because the broader and better argument is that given by my brother Brett, viz., that it is impossible to construe the Act without having regard to the principles of common justice, and the Act of Parliament does not abrogate them merely because it does not specify them, and it is a principle of justice that penalties should not be brought down upon anyone's head without his having been heard in defence of himself. And so the Act of 1868 has no bearing on this question, for it is, as I read it, contradicted by the later Act. For these reasons I think judgment must be for the respondent.

BRETT, J.-In this case the petitioner by his own act made Mr. Poulton a respondent to the petition which he presented against the return at the municipal election for the borough of Maidenhead, and at the trial before the election barrister the case took this shape. It was alleged that there had been a coalition between Poulton and two other candidates, who had been returned as elected, so that any corrupt act of Poulton or his agent would invalidate the election of the others. On this point the barrister found that there had been a coalition, that Poulton had been guilty of corruption through his agent, and that the election of the other two was consequently void. He, therefore, found against Poulton upon this inquiry. Now we are not asked to say if the barrister had jurisdiction to enter on the inquiry, nor if the condition of a person not a respondent to a petition may be inquired into, nor whether if it may he must have notice; nor are we asked to determine

[C. P.

if the objection was made at the right time that Poulton was not a respondent. The only question for us is, was Poulton properly made a respondent or not; and the resulting question is, whether the petitioner who made him a respondent can obtain his costs against him. It is no part of our decision to say that if Poulton had been successful in clearing himself from the charge of corruption he could not have recovered costs against the petitioner. It may therefore be, that if he had been successful he could have got his costs, that may or may not be, but we have now only to decide whether, if not successful, he can be made to pay them. Now, it seems clear that this tribunal has no rights or duties other than those given to it by the Act of Parliament which creates it. The course of procedure is given by statute, and in the statute alone we must look for a definition of the persons who can properly be made petitioners and respondents. That being so, the argument turns er.tirely on the 13th section. The clauses there are, first, descriptive of a petition as complaining of an undue election, then declaring who may be petitioners, then prescribing the form of petition, and then the material part defining who can be made a respondent. The person, and only person, so far as I can see, who can be made a respondent, is a person "against whose election a petition is presented." Poulton, therefore, cannot be a respondent, whatever else he can be, for he has not been elected. Then, turning to the rules, we find that they do not enlarge the definition, nor does the prescribed form of petition given in them contemplate any enlargement; we are, therefore, bound by the words of the statute itself in the 13th section. The arguments against our holding it to be so limited were, that no meaning could be given to the 5th section unless we recognised that a candidate therespoken of might be a respondent; but I think that by applying to the words the explanation that candidate means unsuccessful candidate who is a petitioner, the section is perfectly good and intelligible. Then it is said, further, that a man like Poulton might have grave disqualifications imposed upon him in the course of an inquiry, and that unless he were a respondent a decision involving these disqualifications might be come to against him without any notice being conveyed to him at all. Now, I do not say that as between petitioner and respondent, and for the investigation of their case, the conduct of a third person may not be inquired into and decided upon without any notice being given to him, and, as would have been the case here, he might, if not a respondent, have been proved guilty of corrupt practices. Yet I entirely dissent from the conclusion of the argument, and would never agree that any disability could be fixed on a man in Poulton's position without his having had notice or being heard on the charge. I never would, myself, be a party to so holding, and I say so expressly, because, although the words are not in the Act of Parliament, to so hold would be contrary to the first principles of the English law; and so it must be taken to be implied in the Act that no such decision as is possible under the Act, involving a disqualification, could in fact be come to without notice being given to the accused, and his having an opportunity of being heard. Another argument that has been advanced is, that unless an unsuccessful candidate may be made a respon

think, jurisdiction under sect. 19, and the only other part of the Act brought to our notice upon which it was suggested that we might, notwithstanding the order of the barrister, interfere, was sub-sect. 5 of sect. 21. That, says the Superior Court shall, subject to the provisions of this Act, have the same power, jurisdiction, and authority with reference to an election petition, and the proceedings thereon, as it would have if the petition were an ordinary cause within its jurisdiction; and the argument is that the barrister's order is to be looked upon as if a judge at Nisi Prius had made an order, and it were brought brought before the court to be reviewed. But it is difficult to see how even this could be done-how, where discretion is to be absolute, there could be any power in the court to review the exercise of it. But there is another objection to the argument, which arises from the words of the section. There is the limitation, "subject to the provisions of this Act," and sect. 19, as I have said, gave the barrister jurisdiction. I confess that I arrive with regret at this decision, but I have no alternative but to say that the rule must be discharged.

BRETT, J.-In this case Lovering petitioned under the Act against Dawson, Walker, and Poulton, and made Poulton a respondent to that petition under the Act, assuming that he came within the terms of it. Poulton at once objected at the hearing, and no one has, so far as I know, questioned the fact that the barrister then had jurisdiction to say whether Poulton was properly made a respondent or not. Indeed, the matter was argued before him, and the question that arose was, not whether he had jurisdiction to decide, but whether he decided according to the true meaning of the Act. He decided, for the time, that Poulton was a respondent, and referred it to us to say whether he was right. It was argued before us, and decided in favour of Poulton, that he was improperly made a respondent. The court, upon that argument, acted as having a question of law referred to them under the statute, and so no question at all was made as to the barrister having jurisdiction to decide that point. Well, then he has decided also another point as to the costs, and it is said that he ought not to have given the respondent Poulton costs, because he ought to have decided that he was not properly made respondent. This seems to me to be reasoning in a vicious circle; it is as if a defendant were brought by writ into court, and then, when upon argument it had been decided that he was not legally before the court, it were said that the court had no jurisdiction to give him costs for the illegality by which he had suffered. Here there is no doubt a complication, because the order giving costs to Poulton includes not only those costs incurred by being wrongfully brought up as respondent to the first petition, but much more; because he fought the very questions, for eight days, upon evidence in the first petition which he would have had to fight on the second petition. He ought not, as we see now, to have been made a respondent to the first petition, and if he had not he would not have appeared or incurred costs. Then, too, he would not have been bound by anything proved against him on that trial, but upon the second petition the petitioners would have had to prove it all again, and he would have been unseated and had to pay the costs. So, on consideration of these circumstances, I cannot agree with the equity of the decision of the bar

[C. P.

rister, because, though Poulton ought to have had the costs of being improperly made a respondent, he ought not to have had those of fighting unsuccessfully the evidence of his being involved in corrupt practices. But he had a discretion as to the awarding of costs, and he has exercised it, and I do not think that the 21st section, subsect. 5, takes away the discretion given by section 19. Therefore, I agree with my Lord, that if we had power to review his order we would do so, but, as we have not, the rule must be discharged. GROVE and LINDLEY, JJ. concurred.

Rule discharged. Attorneys for the petitioner, Dangerfield and Blythe, for Rawson, Great Marlow.

Attorneys for respondents, Nickinson, Prall, and Nickinson, for Charles Brown, Maidenhead.

Tuesday, June 7.

OLDHAM V. RAMSDEN.

Betting Houses Act-Action by betting agent for money paid-Plea that paid in contravention of act-Evidence-Club.

Money paid in discharge of a lost bet made for another person is recoverable at law from such other person.

A club whose members habitually bet is not within the meaning of the Betting Houses Act. The plaintiff was a betting agent and member of a club, of which W. was also member, and in which bets were habitually made. For and at the request of the defendant, who was not a member of the club, the plaintiff made a bet with W., which he lost and paid. Suing the defendant to recover the money as paid to his use, he was met by the pleas that the money was paid in discharge of a wagering contract, and also that the bet was made in a house used in contravention of the Betting Houses Act:

Held, that the plaintiff was entitled to recover, and a rule to enter a verdict for the defendant as to the wagering contract refused, and as to the alleged contravention of the Betting Houses Act, discharged.

DECLARATION for money payable by the defendant, for money lent and for money paid to the defendant's use, and for money due on accounts stated.

Material pleas: First, never indebted; fourth, as to money alleged to be lent and due on accounts stated, that the said money was lent after the passing of 16 & 17 Vict. c. 119, (a) and was lent, as the

(a) By 16 & 17 Vict. c. 119 (the Betting Houses Act), after reciting that "a kind of gaming has of late sprung up, tending to the injury and demoralisation of improvident persons, by the opening of places called betting houses or offices, and the receiving of money in advance by the owners or occupiers of such houses or offices, or by other persons acting on their behalf, on their promises to pay money on events of horse races and the like contingencies," it is enacted as follows:-"No house, office, room, or place shall be opened, kept, or used for the purpose of the owner, occupier, or keeper thereof, or any person using the same, or any person procured or employed, or by acting for or on behalf of such owner, occupier, or keeper, or person using the same, or of any person having the care or management, or in any manner conducting the business there of betting with persons resorting thereto; or for the purpose of any money or valuable thing being received by or on behalf of such owner, occupier, keeper,