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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hood and Another v. Gordon [1895] ScotLR 33_3 (16 October 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/33SLR0003.html
Cite as: [1895] ScotLR 33_3, [1895] SLR 33_3
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
v.
Facts:
The Corrupt Practices Prevention Act 1883 provides in sec. 40 (2) that “any election petition presented within the time limited by the Parliamentary Elections Act 1868, may, for the purpose of questioning the return or the election upon an allegation of an illegal practice, be amended with the leave of the High Court.” ….
Held (1) that an application for leave to amend an election petition under this section fell to be made to one of the Divisions of the Court, and not to the Election Judges; (2) that on leave to amend the petition being granted, it was unnecessary to remit the petition to the Election Judges, inasmuch as it was already before them except as to questions which were statutorily outside their jurisdiction and within that of the inner house.
On 19th August 1895 James Hood and Andrew Gillanders, qualified voters at the election of a Member of Parliament for the combined counties of Elgin and Nairn, presented an election petition under the Parliamentary Elections Act 1868 against John Edward Gordon, the elected candidate, praying to have it declared that the election and return of the respondent was null and void. The petitioners averred that the election had been brought about by bribery, treating, and undue influence.
On September 6th, after a date had been fixed by the Election Judges for the trial of the petition, the petitioners presented to the First Division a supplementary petition, in which they prayed to be permitted to amend the said petition by adding thereto certain statements. The prayer also proceeded to crave that the election should be pronounced null and void. The statements proposed to be added consisted of averments of contraventions by the respondent and his agents of various provisions of the Corrupt Practices Prevention Act 1883 in relation to the return and declaration respecting election expenses.
By section 5 of the Parliamentary Elections Act 1868 (31 and 32 Vict. cap. 125) it is provided—“From and after the next dissolution of Parliament a petition complaining of an undue return or undue election of a member to serve in Parliament for a country
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or borough may be presented to the Court of Common Pleas at Westminster, if such county or borough is situate in England, … by any one or more of the following persons.…” Section 58 of the same Act provides:—“The provisions of this Act shall apply to Scotland, subject to the following modifications—(1) The expression, the Court, shall mean either Division of the Inner House of the Court of Session, and either of such Divisions shall have the same powers, jurisdiction, and authority with reference to an election petition in Scotland, and the proceedings thereon which by this Act are conferred on the Court of Common Pleas at Westminster with respect to election petitions in England. (5) The trial of every election petition in Scotland shall be conducted before a judge of the Court of Session to be selected from a rota to be formed as hereinafter mentioned.” By the Parliamentary Election Petition Rules of 1868, which have the force of statute, it is provided:—“(17) The time and place of the trial of an election petition shall be fixed by the judges, and notice thereof in writing shall be affixed by the principal clerk on the notice-board in his office.…” “(24) All interlocutory questions and matters, except as to the sufficiency of the security, shall be made upon application in writing, to be lodged at the office of the principal clerk, and shall be heard and disposed of by one of the judges, or in their absence, by the Lord Ordinary on the Bills.”
The Corrupt Practices Prevention Act 1883 (46 and 47 Vict. cap. 51) provides in sec. 40 (2) that “any election petition presented within the time limited by the Parliamentary Elections Act 1868 may, for the purpose of questioning the return or the election upon an allegation of an illegal practice, be amended with the leave of the High Court, within the time within which a petition questioning the return upon the allegation of that illegal practice can under this section be presented.” By section 68 (4) of the same Act it is provided that “the jurisdiction of the High Court of Justice under this Act shall, in Scotland, be exercised by one of the Divisions of the Court of Session, or by a judge of the said Court to whom the same may be remitted by such Division, and subject to an appeal thereto, and the Court of Session shall have power to make Acts of Sederunt for the purposes of this Act.”
Argued for petitioners—This Court was the proper one to which to bring the application for leave to amend by petition. It was evident from section 5 of the 1868 Act that this was the course contemplated by that Act, and under sec. 40 (2) of the 1883 Act it was directly laid down that this course must be followed. This course had been followed in the Greenock Election Petition, July 20, 1892 (unreported). Accordingly, the amendment should be allowed, and the petition remitted to the Election Judges.
Argued for respondent—This Court was not the proper tribunal before which to bring an application for leave to amend an election petition. The natural course for the petitioners to follow would be to apply to the Election Judges, and there was no necessity to come to this Court. The petition was pending before the Election Judges, and until it was removed from their jurisdiction it was incompetent for another Court to interfere. Section 11 of the 1868 Act—as applied to Scotland by section 58 (5)—showed that the Election Judges ought to dea1 with such matters as this. The expression “High Court” used in section 40 (2) of the 1883 Act was to be read as meaning the Court before whom the petition was being conducted, not in its technical sense—as interpreted in sec. 68 (4) of the Act—of “one of the Divisions of the Court of Session.”
At advising—
Lord President—We are asked by the petitioners to grant leave to amend a petition originally presented by them to have the election for Elginshire declared void and Mr Gordon unseated. Objection has been taken to that on grounds of technicality and procedure, and this objection raises matters worthy of consideration. But I am bound to say that on this question, which is one of practice and precedent, we have not received such assistance from the bar as it turns out might have been available. We have ourselves examined the law applicable to this matter, and I find that our course is rendered tolerably clear by the Parliamentary Election Petition Rules applicable to Scotland, framed by the Judges in Scotland under the Act of 1868, and by two decisions of the other Division of the Court. Shortly stated, it appears to me that the result of these enactments contained in the statute and in the rules, along with the decisions which I have referred to of the Second Division, is this—A petition under the Parliamentary Elections Act is properly presented to either Division of the Court, but what may be done after the petition is presented depends entirely on the nature of the questions which are sought to be raised. In one case, which is not reported, but in which I was counsel, and as to which I have just now verified the facts, viz., the Wigtonshire Burghs case, the petition never was moved in the Division until the approval of the Auditor's report after the trial had taken place. My recollection of the Dumbartonshire case is that the same course was followed, but as to that I am not so accurately informed. But in the two reported cases which have occurred in the Second Division, the question has been carefully considered what motions are proper to the Division and what to the Election Judges, and that is so far determined by the 24th rule of the Rules of 1868, which provides that all interlocutory questions and matters except as to the sufficiency of the security shall be made upon application in writing, to be lodged at the office of the Principal Clerk, and shall be heard and disposed of by one of the Judges; that was, of course, in the days when one and not two Judges tried these
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Now, we have to consider how stands the present application. It was suggested by Mr Dickson that it was necessary that the petition—when I say the petition I should amplify that by saying all petitions, even under the Act of 1868—must he got out of the First Division by being transferred or remitted to the Election Judges. I take that, upon the statute, the Rules, and the two decisions which I have referred to, to be a mistake. I do not think that the Division requires to remit the petition for the disposal of these matters within the statute and the Rules even to the Election Judges. The thing works automatically. If you have a thing proper to the Division in the sense of the two Second Division cases, come to the Division. If you have a matter proper to the Election Judges under the statute and the Rules, go to the Election Judges. Now, how stands the present application. It appears to me to depend, not on the discrimination of the duties of the Division and Judges, as those are determined by the Act of 1868, because it is expressly presented under the Act of 1883; it is an application for leave to amend the petition. Now, the Act of 1883 says that leave must be granted, if at all, by the High Court, and the High Court, as interpreted for Scotland, means the Division. Accordingly, here I think our course is quite clear. We are asked to administer the Act of 1883 on an application for leave to amend, and it is we alone who can grant such leave. Accordingly, I think we must entertain this application, but entertain it for the purpose of performing the statutory duty under the Act of 1883, of granting or refusing leave to amend. Now, on the merits of the question, Mr Dickson, whose position I perfectly understand, made no observations—that is to say, he had no opposition to offer on the merits of the question whether the petition shall be amended unless he was right in his original suggestion, that that is no business of ours, and is to fall to the Election Judges. Now, I have looked at the proposed amendments. They seem to be legitimate and proper, and I am supported in that view by the—absence of observations to the contrary on the part of Mr Dickson. I think we should grant leave to amend the petition by inserting in it the allegations contained in the note. By a singular view of what was fitting in such an application the petitioners have gone on in this application for leave to amend this petition, to pray over again that Mr Gordon be unseated. I am not disposed to take any notice of that application, because that is not matter for us. I propose to limit our action to what the Act of 1883 gives us power to do, that is, to give leave to amend, I think we should do so by allowing the petitioners to insert this statement of facts contained in this paper, and leave it so. After that the parties require no remit of ours to go to the Election Judges to get them to exercise the powers conferred on them by the Act of 1868, the Rules under that Act, and the Act of 1883.
The Court “granted leave to amend the original petition … in terms of the prayer of the supplementary petition.”
Counsel for Petitioners— Shaw, Q.C.— Dewar. Agent— James Falconer, W.S.
Counsel for Respondent— C. S. Dickson— J. Wilson. Agents— Mackenzie, Innes, & Logan, W.S.