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Full text of "Encyclopaedia of the laws of England, with forms and precedents"

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ENCYCLOPAEDIA 



OF THE 



LAWS OF ENGLAND 



VOLUME V 



EDITORS 



A. WOOD RENTON, Esq., Puisne Justice of the Supreme Court 

OF Ceylon 

liAX. A. ROBERTSON, Esq., of the Inner Temple and the 
Midland Circuit, Barrister-at-Law 



Printed by William Gruen & Sons, Edinburgh 
Jxnie 1907 



ENCYCLOPEDIA 



OF THE 



LAWS OF ENGLAND 

WITH FORMS AXD PRECEDENTS 



BY THE 



MOST EMINENT LEGAL AUTHORITIES 

SECOND EDITION 
EEVISED AND ENLARGED 



VOLUME V 
DOMINICAN REPUBLIC 

TO 

FACTORIES AND WORKSHOPS 




LONDON AND EDINBURGH 
SWEET & MAXWELL, LTD., AND WM. GREEN &, SONS 

TORONTO 
THE CANADA LAW BOOK COMPANY 



Digitized by the Internet Archive 

in 2008 with funding from 

IVIicrosoft Corporation 



http://www.archive.org/details/encyclopaediaofl05jacouoft 



THE AUTHOES OF THE PEINCIPAL ARTICLES IN THIS 
VOLUME AEE AS FOLLOWS:— 

[Square brackets indicate that the article has not been revised by the original author. 
In these articles square brackets throughout the text indicate new matter added 
to the original article.'] 

Dominican Republic. — Alexander Pulling. 

Donatio inter vivos. — H. S. Theobald, [A. Wood Kenton, Puisne Justice of tlie 
Supreme Court of Ceylon.] 

Donatio mortis causa. — H. S. Theobald. [A. Wood Renton, Puisne Justice of the 
Supreme Court of Ceylon.] 

Dormant Funds. — C. Burney, one of the Masters of the Supreme Court. 

Double Rent and Double Value. — Edgar Foa. 

Drainage.~J. V. Vesey Fitz-Gerald, K.C. 

Drains and Sewers.— J. V. Vesey Fitz-Gerald, K.C. 

Drilling, Unlawful. — W. F. Craies. 

Drunkenness. — A. Wood Renton, Puisne Justice of the Supreme Court of Ceylon. 

Duel.—W. F. Craies. 

Easement. — J. Leybourn Goddard. [N. G. L. Child.] 

Ecclesiastical Commissioners. — W. F. Phillpotts. [R. Geoffrey Ellis.] 

Ecclesiastical Corporations. — J. Arthur Price. [R. Geoffrey Ellis.] 

Ecclesiastical Law.—W. Digby Thurnam. [A. Wood Renton, Puisne Justice of the 
Supreme Court of Ceylon.] 

Ecuador. — Alexander Pulling. 

Education. — C. A. Montague Barlow. 

Egypt. — Alexander Pulling. 

Egypt— Legislation and Judicial Organisation. — Sir Malcolm M'llwraith, K.C.M.G. 

Electio7i, Equitable Doctrine of. — E. Manson. 

Election Agent. — G. H. B. Kenrick. 

Election Commissioners. — G. H. B. Kenrick. 

Election Expenses. — G. H. B. Kenrick. 

Election Petition. — G. H. B. Kenrick. 



vi LIST OF AUTHOKS 

EUction8.—G. H. B. Ke^rick. 

Emban/o. — Sir Thonuas Barclay, Knt. [A. Wood Renton, Puisne Justice of the 
Supreme Court of Ceylon.] 

Embezzlement.— W. F. Craies. 

Employers' Liability. — A. H. Ruegg, K.C. 

Endowed Schools.— Q. B. M. Coore. [C. A. Montague Barlow.] 

Enlargement of Long Terms. — C. Johnston Edwards. 

Enlistment, Army.—G. H. Knott. [V. M. Coutts Trotter.] 

Enrolment.— C. C. M. Dale. [N. G. L. Child.] 

En ventre sa mkre. — F. W. Sherwood. 

Equitable Assignment.— D. M. Kerly. [C. Johnston Edwards.] 

Equitable Estates and Interests. — H. W. Challis, [C. Johnston Edwards.] 

Equity.— D. M. Kerly. [C. Johnston Edwards.] 

Error, Writ of. — F. H. Shortt. [A. Wood Renton, Puisne Justice of the Supreme 
Court of Ceylon.] 

Escape. — W. F. Craies. 

Escheat. — H. W. Law. [C. Johnston Edwards.] 

Esquire. — G. H. Knott. [A. Wood Renton, Puisne Justice of the Supreme Court of 
Ceylon.] 

Estate and House Agent. — W. Bowstead. 

Estates.— J. D. Israel. [C. Johnston Edwards.] 

Estates of Estoppel. — J. D. Israel. [C. Johnston Edwards.] 

Estates of Inheritance. — J. D. Israel. [C. Johnston Edwards.] 

Estoppel.— B. M. Kerly. [N. G. L. Child.] 

Estreats.— W. F. Craies. 

Ethiopia. — Alexander Pulling. 

Evidence. — J. G. Pease.' 

Evidence for Foreign and Colonial Tribunals. — F. A. Stringer, of the Central Office. 

Exchange.— i. D. Israel. [C. Johnston Edwards.] 

Excise.— ^\v Francis Gore, Knt., Solicitor to the Inland Revenue, and G. H. Dennis, 
Assistant Solicitor of Customs. 

Exclueion. — Sir Thomas Barclay, Knt. [A. Wood Renton, Puisne Justice of the 
Supreme Court of Ceylon.] 

Excommunication. — W. Digby Thurnam. [A. Wood Renton, Puisne Justice of the 
Supreme Court of Ceylon.] 

Execution. — C. Buraey, one of the Masters of the Supreme Court, and F. A. Stringer, 
of the Central Office. 

Executive Government.— J. P. Wallis. [A. Wood Renton, Puisne Justice of the 
Supreme Court of Ceylon.] 

Executors and Administrators.— C. W. Greenwood. [C. Johnston Edwards.] 

Executory Interests.— J . D. Israel. [C. Johnston Edwards.] 



LIST OF AUTHOES vii 

Explosives. — W, F. Craies. 

Extent. — R. F. Graham Campbell. [A. Wood Renton, Puisne Justice of the Supreme 

Court of Ceylon.] 

Exterritoriality. — Sir Thomas Barclay, Knt. [A. Wood Renton, Puisne Justice of 
the Supreme Court of Ceylon.] 

Extortion. — W. F. Craies. 

Extradition. — Sir Thomas Barclay, Knt. [A. Wood Renton, Puisne Justice of the 
Supreme Court of Ceylon.] 

Factor. — W. Bowstead. 

Factories and Workshops. — W. Blake Odgers, K.C., and E. J. Naldrett. 



EKRATUM 



Vol. IV., p. v., County, and p. vii., District Council, for E. J. Naldred read 
E. J. Naldrett. 



ENCYCLOPEDIA 



OF 



THE LAWS OF ENGLAND 



Dominican Republic. — Area mid Constitution. — The Ee- 
public of Santo Domingo (otherwise the Dominican Eepubhc) covers 
the eastern portion of the island of Hayti, the remainder forming the 
Eepubhc of Hayti {q.v.). The area of the Dominican Eepubhc is about 
18,000 square miles, more than twice that of Wales. 

The Eepublic (formerly Spanish territory) was founded in 1844, and 
the present constitution is regulated by the ISTational Convention of 
September 27, 1866 (Hertslet's State Papers, vol. Iviii. p. 333). Under 
it the executive powder is in a President indirectly elected, and the 
legislative in a National Congress (whose powers are restricted) directly 
elected. 

Application of British Statides. — The Eepublic having ceased to grant 
an export bounty on sugars, the Order in Council prohibiting importa- 
tion of Dominican sugars into the United Kingdom was, February 4, 
1905 (St. E. & 0., 1905, p. 473), revoked. 

The protection of Patents {q.v.), Trade Marks, and Copyright of 
Designs is regulated by Order in Council (St. E. & 0., Eev., 1904, vol. ix. 
"Patents," p. 11), the Eepublic having acceded (see Hertslet's State 
Papers, vol. Ixxxii. p. 1059) to the International Industrial Property 
Convention as from July 11, 1890. 

The Eepublic has not availed itself of the numerous other provisions 
for reciprocal arrangements with this country which are carried into 
effect by Statutory Orders. 

Donatio inter vivos- — For a gift inter vivos two things are 
necessary — the intention to give, followed by acts giving effect to the 
intention. So long as the intention is not completely carried out, the 
gift is imperfect and the donee has no legal rights against the donor. A 
mere promise to give is of no legal effect. 

It follows that the donee cannot maintain an action upon the pro- 
missory note of the donor (Halliday v. Atkinson, 1826, 5 Barn. & Cress. 
501). 

As to donatio mortis causd of cheques, see Vol. III. p. 36. 

A cheque is an authority from the drawer to the bank to pay the 
amount of the cheque. If, therefore, the donee of a cheque upon the 
donor's bankers does not cash it in the donor's lifetime the gift fails. 

Possibly if the donee presents the cheque and the bankers decline to 
pay it because they doubt the signature, the gift may be good though 
VOL. V. 1 



2 DONATIO INTER VIVOS 

the donor dies before payment {Tate v. Hilhert, 1793, 2 Ves. Jun. Ill ; 
30 E. R. 548 ; 2 R. R. 175 ; Bromley v. Brunton, 1868, L. R. 6 Eq. 275). 
[Cp. In re Beaumont, [1902] 1 Ch. 889.] 

Upon similar principles a mere declaration of intention to forgive a 
debt has no effect ; there must be something amounting to a release in 
law (Cross v. Sjrrvjff, 1849, 6 Hare, 553 ; 67 E. R. 1283 ; 77 R. R. 236). 

Acceptance by the donee is not essential to complete the gift. 
Acceptance will be presumed though he is not aware of the gift. He 
may, of course, repudiate the gift when he becomes aware of it (Handing 
V. Bozvring, 1885, 31 Ch. D. 282; London and County/ Banking Co. v. 
Lomloti and River Plate Bank, 1888, 21 Q. B. D. 535, at p. 541). 

As regards the intention to give, it lies upon a donee, if called upon 
to do so, to support a gift, and therefore to show the intention to give. 

If, however, the donor stands to the donee in a relation from which 
an obligation, either natural or assumed on the part of the donor, to 
provide for the donee can be inferred, the intention to give will be 
presumed. 

Such an obligation exists, and accordingly the intention to give will 
be presumed, where the donor is the husband or the father of, or in loco 
pareTitis to, the donee. It does not exist in the case of a widowed 
mother (Soar v. Foster, 1858, 4 Kay & J. 160 ; 70 E. R. 64 ; Repivorth v. 
ffepiaorth, 1870, L.R. 11 Eq. 10 ; Bennet v. Ben7iet, 1879, 10 Ch. D. 474; 
see Vol. I. p. 208, sub tit. Advancement). 

On the other hand, where a fiduciary relation subsists between the 
donee and donor, such as the relation of guardian and ward, solicitor 
and client, physician and patient, priest and nun, and the like, a gift 
made while the relation continues can only be upheld if it is shown that 
the gift was the spontaneous act of the donor under circumstances which 
entitled him to exercise a free and independent will, — a burden of proof 
which it is difficult, if not impossible, to discharge (Allcard v. Skinner. 
1887, 36 Ch. D. 145; Morley v. Loughman, [1893] 1 Ch. 736; LilesY 
Terry, [1895] 2 Q. B. 679). [See Powell v. Poivell, [1900] 1 Ch. 243 
WUlis V. Barron, [1902] A. C. 271 ; Wright v. CaHer, [1903] 1 Ch. 27 
De Witte v. Addison, 80 L. T. 207. See Fiduciary Relationship 
^loNEY Lenders Act ; Undue Influence. A voluntary gift made on 
the faitli of an innocent misrepresentation of fact by the donee may be 
recovered in equity (In re Gluhh, [1900] 1 Ch. 354).] 

A gift made under such circumstances will become valid if after the 
relation has ceased the donor intentionally abides by the gift (Mitchell 
v. Homfray, 1881, 8 Q. B. D. 587). 

As regards the acts necessary to carry out the intention to give : A 
gift may be made either (a) by a transfer of property to the donee or to 
trustees for the donee, or (h) through the medium of a trust by which 
the donor constitutes himself a trustee for the donee. It is a question 
of intention in each case whether the donor intended to make the gift 
by means of a transfer or to convert himself into a trustee. 'If the 
intention was to transfer, the gift, if imperfect, cannot be supported 
through the medium of a trust, nor vice versd (Milroy v. Lord, 1862, 
4 De G., F. & J. 264; 45 E. R. 1185 ; Richards v. Delhridge, 1874, L. R. 
18 Eq. 11; Heartlcy v. Nicholson, 1874, L. R. 19 Eq. 233; Carter v. 
Carter, [1896] 1 Ch. 62). [The indorsement and delivery of a banker's 
deposit-receipt, with the intention to make a gift, operate as a good 
equitable assignment of the amount at the bank ; but if anytliing be 
required to complete the gift, the appointment of the donee as executor 



DONATIO INTEE VIVOS 3 

of the donor perfects it {In re Griffin, [1899] 1 Ch. 408). The passing of 
the donee's name on the Stock Exchange as transferee of stocks and 
shares constitutes a perfect gift of them, though the donor dies before 
the transfers are executed {In re Smith, 84 L. T. 335).] 

Where the gift is intended to take effect by way of transfer, the donor 
must have done all in his power to divest himself of the property which 
he has in the subject-matter of the gift, and to vest it in the donee. 

Thus the gift of chattels passing by delivery, if not made by deed, 
must be completed by delivery {Cochrane v. Moore, 1890, 25 Q. B. D. 57*; 
Kilinn V. Ratleij, [1892] 1 Q. B. 582). 

If the property can only pass by deed, there must be a deed to com- 
plete the gift ; for instance, the delivery of a policy of assurance by way 
of gift to a donee passes no interest in the policy moneys, but only the 
right to the paper upon which the policy is written {Barton v. Gainer, 
1858, 3 H. & N. 387; Rummens v. Hare, 1876, 1 Ex. D. 169). 

And delivery of a title-deed deposited with the donor by way of 
equitable charge passes no right either to the charge or to the deed {In 
re Richardson ; Shillito v. Hohson, 1885, 30 Ch. D. 396). 

Apparently a voluntary assignment of a debt secured by mortgage 
without a transfer of the securities is incomplete, though the effect may 
be to give a right of action against the donor, if he afterwards gets in 
the debts {Woodford v. Charnley, 1860, 28 Beav. 96; 54 E. K. 302; 
Bizzeii V. Flight, 1876, 24 W. R. 957; In re Patrick; Bills y. Tatham, 
[189i] 1 Ch. 82). 

A voluntary assignment by deed of a reversionary equitable interest 
is effectual {Kekeiuich v. Manning, 1851, 1 De G., M. & G. 176 ; 42 E. R. 
519; Doncddson v. Donaldson, 1854, Kay, 711; 69 E. R. 303; In re 
Ways Trusts, 1864, 2 De G., J. & S. 365 ; 46 E. R. 416). 

But a mere voluntary charge on a reversionary interest rests in 
contract only, and cannot be enforced {In re Earl of Lucan ; Hardinge 
V. CoMen, 1890, 45 Ch. D. 470). 

There is some doubt whether, where property is vested in trustees 
for a donor, an assignment by the donor of his equitable interest is 
effective, if the legal title is not also vested in the donee {Bridge v. 
Bridge, 1852, 16 Beav. 315 ; 51 E. R. 800; Beech v. Keep, 1854, 18 Beav. 
285; 52E. R. 113). 

A voluntary assignment of a debt is complete without notice to the 
debtor {Fortescue v. Barnett, 1834, 3 Myl. & K. 36 ; 40 E. R. 14 ; 41 R. R. 
5 ; Donaldson v. Donaldson, 1854, Kay, 711 ; 69 E. R. 303). 

If the gift is intended to take effect through the medium of a trust, 
and the subject-matter is lands, tenements, or hereditaments, the trust 
must, having regard to the Statute of Frauds, be manifested and proved 
by some writing signed by the beneficial owner (see 29 Car. ii. c. 3, s. 7 ; 
Kronheim v. Johnson, 1877, 7 Ch. D. 60). 

A trust of personalty may be created by parol {M'Fadden v. Jenkyns, 
1842, 1 Ph. 153; 41 E. R. 589; 65 R. R. 354; Peckham v. Taylor, 1862, 
31 Beav. 250; 54 E. R. 1134). 

As a general rule, a gift, if complete, is not revocable at the pleasure 
of the donor, but there is an exception to the rule in the case of volun- 
tary assignments for the purpose of paying the assignor's debts. In 
those cases the Court will examine the circumstances for the purpose 
of ascertaining whether the motive of the assignor was to benefit his 
creditors or to promote his own convenience. In the latter case, so long 
as the deed has not been communicated to the creditors, it is revocable 



4 DONATIO MOliTIS CAUSA 

{Garrard v. Lord iMuderdale, 1830, 3 Sim. 1 ; 57 E. R 901 ; 30 R. R. 
105; ^miV/i v. ^?«-s/, 1851, 10 Hare, 30; 68 E. E. 826; Neiv Prance die 
Garrard's Tnistee v. Hunting, [1892] 2 Q. B. 19). 

Formerly a voluntary conveyance of land was liable to be defeated 
by a subsequent sale by the donor for valuable consideration, but 
this liability has been removed by the Voluntary Conveyances Act, 
1893, 56 k 57 Vict. c. 21. As to the avoidance of voluntary settle- 
ments on bankruptcy, see Vol. II. p. 40. See also Gift. 

Donatio mortis causa is a gift made in contemplation of 
death, and upon condition that it is to take effect only in case of the 
death of the donor. The condition need not be expressed. The Court 
infers it if the gift is made in contemplation of death, and there is 
nothing to show a contrary intention. If the donor recovers, the gift is 
revoked {Tate v. Hilhcrt, 1793, 2 Ves. Jun. Ill ; 30 E. R. 548 ; 2 R. R. 
175 ; Gardner v. Parker, 1818, 3 Madd. 184 ; 56 E. R. 478 ; 18 R. R. 213 ; 
Edwards v. Jones, 1836, 1 Myl. & Cr. 226 ; 40 E. R. 361 ; 43 R. R. 178). 

Therefore an absolute and irrevocable gift cannot be a donatio mortis 
cansd {Edwards v. Jones, 1836, 1 Myl. & Cr. 226 ; 40 E. R. 361 ; 43 R. R. 
178). 

[A gift may be good as a donatio mortis causa, although coupled with 
a trust or condition that the donee shall provide the funeral of the 
donor. Such a circumstance, however, afibrds a very strong argument 
that the deceased did not intend to make a donatio mortis causd, but 
only to make the defendant his executor under a nuncupative will 
{mils V. Hills, 8 M. & W. 401 ; Treasury {Solicitor to) v. Lewis, [1900] 
2 Ch. 872).] 

To constitute a good donatio mortis causd there must be delivery of 
the subject-matter of the gift to the donee or to some person on his. 
behalf, though an antecedent delivery, alio intuitu, is sufficient {Powell 
V. Hellicar, 1858, 26 Beav. 261; 53 E. R. 898; Cain v. Moore, [1896] 
1 Q. B. 283). 

[The gift of a box containing share certificates and other valuables, 
where the donor retains the key of the box, is not a good do7iatio mortis 
cansd {In re Johnson, 1905, 92 L. T. 357).] 

As to what property may be the subject-matter of a donatio mortis 
causd, it is not easy to deduce any principle from the cases. It is plain 
that the subject-matter may be of such a kind that the property does 
not pass to the donee by delivery, but no general principle can be laid 
down as to what may or may not be given. It was said in In re William 
Hughes (1888, 36 W. R. 821) that the subject of donationes mortis causd 
must be things the title to which, or the evidences of title to which, 
passes by delivery. 

The following have been held capable of being the subject-matter of 
a donatio raortis causd: — {a) Coin and banknotes {Lawson v. Lawson, 
1718, 1 P. Wms. 441 ; 24 E. R. 463 ; Miller v. 3Iiller, 1735, 3 P.'Wms. 
356; 24 E. If. 1099; Shanleij v. Harvey, 1762, 2 Eden. 126; 28 E. R. 
844); {b) bonds and mortgage deeds {Gardner v. Parker, 1818, 3 Madd. 
184; 56 E. R. 478; 18 R. R. 213; Diiffield v. Elwes, 1827, 1 Bli. N. S. 
497 ; 4 E. R. 959 ; 30 R. R. 69 ; Merideth v. Watso7i, 1853, 17 Jur. 1063 ; 
In re Patterson, 1864, 10 Jur. N. S. 578); (c) bills of exchange, promis- 
sory notes, and checiues payable to the donor's order and not endorsed 
{Rankin v. Wcgulein, 1829, 27 Beav. 309 ; 54 E. R. 121 ; Veal v. Veal, 
1859, 27 Beav. 303 ; In re Mead; Aicstin v. Mead, 1880, 15 Ch. D. 651 ; 



DORMANT FUNDS 5 

Clement v. Cheesman, 1884, 27 Ch. D. 631) ; [as to the gift of a cheque 
not cashed in the donor's Hfe, see In re Beaumont, [1902] 1 Ch. 889, and 
authorities there cited] ; (d) deposit-receipts, though stated to be not 
transferable (Amis v. Witt, 1863, 33 Beav. 610 ; 55 E. R. 509 ; Moore v. 
Ifoore, 1874, L. R. 18 Eq. 474; Cassicly v. Belfast Banking Co., 1887, 22 
L. R. Ir. 68; In re Dillon; Duffin v. Duffin, 1890, 44 Ch. D. 76); {e) a 
poHcy on the donor's Hfe {Amis v. Witt, 1861, 1 B. & S. 109) ; [(/) a 
Post Office Savings Bank book {In re Weston, [1902] 1 Ch. 680); but 
not of a deposit invested by a savings bank in Government stock, even 
though the certificate investment be given also {In re Andrews, [1902] 
2 Ch. 394). The Irish Court of Appeal have held that an I. 0. U. cannot 
be the subject of a donatio mortis causd {Duckworth v. Lee, [1899] 1 Ir. R. 
405).] 

On the other hand, an instrument which forms no part of the title 
to property cannot take effect as a donatio mortis causd of the property. 
Thus, a receipt for South Sea Annuities, which was apparently a docu- 
ment forming no part of the title to the annuities, did not operate as 
a donatio mortis causa of the annuities. And this principle has been 
extended to scrip certificates for railway stock {Ward v. Turner, 1751, 
2 Ves. 431 ; 28 E. R. 275 ; Moore v. Moore, 1874, L. R. 18 Eq. 474 ; see 
also In re Mead, Austin v. Mead, 1880, 15 Ch. D. 651). 

A donatio mortis causd is subject to debts, and is liable to legacy 
duty, but it does not require probate or the executor's assent {Smith v. 
Cascn, 1718, 1 P. Wms. 406; 24 E. R. 446 ; Thompson \, Hodgson, 1795, 
2 Stra. 777). 

[^Authority. — Jarman on Wills, 5th ed.] 

Donative Advowson.— See Advowson. 

Done. — An omission to do something w^hich ought to be done in 
order to the complete performance of a duty imposed upon a public body 
under an Act of Parliament, or the continuing to leave any such duty 
unperformed, amounts to " an act done or intended to be done " within 
the meaning of a clause requiring a notice of action {B. v. Williams, 
1884, 53 L. J. P. C. 64, at p. 71, citing Jolliffe v. Wallasey Local Board, 
1873, L. R. 9 C. P. 62). See also B. v. St. John's, Hackney, 1835, 2 Ad. 
& E. 548 ; Ongley v. Chatham, 1887, 4 T. L. R. 6 ; Edwards v. Vestry of 
St. Mary, Islington, 1889, 58 L. J. Q. B. 165). 

Dormant Funds. — The term "dormant funds" is applied to 
such funds in the books of the Pay Office as have not been dealt with for 
upwards of fifteen years. With respect to these the Supreme Court 
Funds Rules, 1905, provide that on or before the 1st day of March in 
every third year the Paymaster shall prepare a list of the accounts in 
the books of the Pay Office (other than those where the balances do not 
amount to £5) to the credit of which there stood on the 1st day of the 
preceding September any funds not less than £50 which have not been 
dealt with, otherwise than by the continuous investment or placing on 
deposit of dividends, during the fifteen years immediately preceding the 
last-mentioned date. The list must be filed in the Central Office, and a 
copy inserted in the London Gazette, and exhibited in the several offices 
of the Court. The Paymaster may in his discretion give any informa- 
tion respecting any funds in Court mentioned in the list, upon a request 
signed by the person applying for information or his solicitor. The 



6 DORxMANT FUNDS 

request, if made by a solicitor, must state the name of the person on 
whose behalf the application is made, and that such person is in the 
opinion of the applicant beneficially interested in the funds. If the 
request be made by any person other than a solicitor, information will 
not be given unless the applicant is able to satisfy the Paymaster that 
the rei]uest is such as may in the particular case be properly complied 
with. The Paymaster may omit from the list any account in respect of 
which he may be informed by or on behalf of a person interested therein 
tliat an order dealing with it will be applied for ; or any account, the 
funds standing to the credit of which have been lodged under rule 41 (a) 
(i.e. funds lodged in Court by a legal personal representative under the 
Trustee Act, 1893, without an affidavit), and remained undealt with for 
a period not exceeding twenty years (r. 101). 

Wherever a cause or matter has been inserted in the above-mentioned 
list, the fact must be notified on the certificate of fund which is issued 
by the Paymaster pursuant to rule 99. 

Every petition or summons for dealing with funds which have been 
placed in the list of dormant funds must contain a statement that such 
funds have not been dealt with for fifteen years or upwards, and, where 
such funds amount to or exceed in value £500, a copy of such petition 
or summons must, unless the Court or a judge shall otherwise direct, be 
served on the official solicitor of the Court (E. S. C, 1883, Order 22, 
T.Ub). 

The last list of dormant funds was published in a supplement to the 
London Gazette on March 3, 1905. Such list does not state the amount 
standing to the credit of each particular account. The aggregate amount 
of the balances is less than £1,000,000 sterling, distributed over more 
than 3300 separate accounts. As a rule, the amount of the fund to any 
one credit is not large, one-half of the balances not exceeding £150 in 
value, and only about one-twentieth exceeding £1000. 

In connection with the subject of dormant funds, it may be stated 
that it is not the practice to order a fund which has been many years in 
Court witliout having been dealt with to be paid out to the legal personal 
representative of the person to whose account it stands, merely upon 
its being shown that there are persons beneficially interested ; that part 
of the fund only will be parted with as to which it is directly proved who 
are the persons beneficially interested ; the costs, however, of the legal 
personal representative and of the other parties will be directed to be 
paid out of the whole fund {Samson v. Samson, 1870, 18 W. R. 530 ; and 
see On^ok v. Binney, 1822, Jac. 523 ; 37 E. R. 948 ; Loy v. Dnckett, 1841, Cr. 
& Ph. 305; 41 E. R. 507; EdwardsY. Harvey, 1863, 11 W. R. 330; Peacock 
V. Safffjera, 1862, 4 De G., F. & J. 406 ; 45 E. R. 1240). The ordinary 
rule of practice until lately adopted was that the beneficial interest 
would lie followed where the person entitled had been dead more than 
twenty years (cp. Ex parte Roskrow, 1885, W. N. 3). The judges of the 
Chancery Division have, however, recently given directions th^t, as a 
general rule, funds in Court belonging to the estate of a deceased person 
shall not, after the expiration of ten years from his death, be paid to his 
legal personal representative without notice to the beneficiaries (Practice 
Note, 1904. W. N. 135). 

[Avthorities.—^n^iXQmQ Court Funds Rules, 1905, rr. 99, 101, 102; 
R. S. C, 1883, Order 22, r. 125; Dan. Ch. Pr„ 7th ed., pp. 1492, 1511; 
The Annual PmiHce^ 1906, vol. i. pp. 292, 731 ; vol. ii. pp. 321, 322, 350, 
351.] li- ' ' Fi 



DOUBLE EENT AND DOUBLE VALUE 7 

Double Complaint.— See Duplicity. 

Double Rent and Double Value.— These are statu- 
tory remedies which, under certain prescribed conditions, are given to 
landlords when their tenants refuse to give up possession of the premises 
demised to them upon the determination of their interests. The former 
applies when the tenant holds over after he has himself given notice to 
quit ; the latter when he holds over after he has received notice from the 
landlord. The conditions referred to are, as will be seen, essentially 
different. 

(1.) Double i?c?ii^.— The Distress for Kent Act, 1737, 11 Geo. ii. c. 19, 
provides (s. 18) that a tenant who has given a notice to quit, and who 
fails to give up possession of premises demised to him at the time specified 
in such notice, shall thenceforward pay double the rent or sum which 
he would otherwise have paid, " to be levied, sued for, and recovered at 
the same time and in the same manner as the single rent or sum," and 
" to be paid during all the time " he " shall continue in possession." For 
the statute to operate, the tenant must have given a notice which, by 
complying with the prescribed requirements as to form and length (see 
Notice to Quit), was binding when it was given both upon himself and 
upon the landlord {Jolmstone v. Hudlestone, 1825, 4 Barn. & Cress. 922 ; 
28 E. E. 505). Where, for example, a tenant gave notice to quit " as 
soon as " he " could possibly get another situation," it was held that 
double rent could not be recovered against him when he held over after 
the condition was fulfilled {Far ranee, v. Elkington, 1811, 2 Camp. 591 ; 
11 E. E. 807). It is not necessary that the notice should have been in 
writing (Timmins v. Rowlinson, 17G5, 3 Burr. 1603). The double rent 
given by the statute may, as has just been seen, be " levied " in the same 
way as the ordinary rent, and may consequently be recovered by distress 
(see Huniberstone v. Dubois, 1842, 10 Mee. & W. 765). Though the 
statute has been held not to extend to a weekly tenant {Sidlivan v. 
BislwiJ, 1826, 2 Car. & P. 359), it applies, as already stated, to ' any 
tenant or tenants," and the decision, if correctly reported, would seem to 
have been given per incnriam. It applies to a tenancy though created 
only by parol {Timmins v. Rowlinson, supra). A tenant who, after 
having given notice, holds over for a year paying double rent under the 
statute, may quit at the end of such year without fresh notice, for the 
statute in terms provides that double rent shall only be paid while 
the tenant continues in possession {Booth v. Macfarlane, 1831, 1 Barn. 
& Adol. 904; 35 E. E. 488). 

(2.) Double Value. — By 4 Geo. ii. c. 28, s. 1, if any tenant " for any 
term of life, lives, or years," or any person in possession of any heredita- 
ments by, from, or under such tenant, shall " wilfully hold over " after 
the determination of such term, and " after demand made and notice in 
writing " for possession by his landlord or other owner of the reversion 
or his lawfully authorised agent, such person so holding over shall " for 
and during the time he . . . shall so hold over or keep the person . . . 
entitled out of possession," pay to the latter, his executors, administrators, 
or assigns, " at the rate of double the yearly value of the . . . heredita- 
ments so detained, to be recovered ... by action of debt, . . . against 
the recovery of which said penalty there shall be no relief in equity." 

There are several important points of difference in the application 
and effect of the two statutes here considered. For a study of the 
language of the Act just set out shows {a) that double value can be 



8 DOUBLE EENT AND DOUBLE VALUE 

recovered by action only ; (b) that it can only be recovered in the case 
of tenancies of specified kinds; (c) that the notice upon which the 
action is founded must be in writing ; (d) that the holding over must 
be " wilful ; " (e) that the damages recoverable are to a certain extent 
discretionary. To which may be added (/) that the existence of the 
relation of landlord and tenant between the parties to the action as a 
continuing relation is not necessary. A few observations are appended 
upon each of these points in their order. 

(a) The statute itself providing an " action of debt " as the means of 
recovering double value, it has been judicially pointed out that no dis- 
tress for it, as in the case of double rent, can be leviecj {Tim/mins v. 
Kmvliiison, 1765, 3 Burr. 1603). The statute, as will have been seen, in 
terms describes double value as a penalty. Hence the action (under 
3 & 4 Will. IV. c. 42, s. 3) must be brought within two years, and dis- 
covery therein, whether of documents or by interrogatories, will not, in 
compliance with established rule, be permitted to the plaintiff. 

{h) Unlike the double rent statute, which, as has been seen, applies 
to " any tenant or tenants," the double value statute applies only to a 
" terra of life, lives, or years." This seems to cover a tenancy from year 
to year {Lake v. Smith, 1805, 1 N. E. 174; Byal v. Rich, 1808, 10 East, 
48), but not one from week to week {Lloyd v. Rosbee, 1810, 2 Camp. 453 ; 
11 K. K. 764), or (probably) from quarter to quarter (see Wilkinson v. 
Hidl, 1837, 3 Bing. N. C. 508; 43 E.K. 728). A case is to be found in 
the books where a tenancy for a single year was treated, apparently 
without argument, as being within the enactment {Cohh v. Stokes, 1807, 
8 East, 358 ; 9 E. E. 464). 

(c) Like the double rent statute, the double value statute requires 
that in those cases where notice to quit is necessary the first step for 
recovery of the penalty should be a notice which by law is valid and 
binding upon both parties {Page v. ILore, 1850, 15 Q. B. 684; 81 E. E. 
749). But whereas a parol notice is sufficient in the former case, the 
Statute 4 Geo. ii. requires a " demand made and notice in writing given," 
though it has been held that no demand other than that contained in 
the notice is necessary {Wilkinson v. Collcy, 1771, 5 Burr. 2694). In 
yearly tenancies the ordinary form of notice to quit on a given day, 
" or on such other day as your tenancy shall expire next after the expira- 
tion of half a year from the receipt of this notice," is sufficient {Hirst 
y. Horn, 1840, 6 Mee. & W. 393 ; 55 E. E. 672). In tenancies for a 
fixed term, where no notice to quit is required at all, a written notice, 
described as a notice to quit, will satisfy the requirements of the statute 
{Messenger v. Armstrong, 1785, 1 T. E. 53; 1 E. E. 148). Nor need it 
necessarily be given before the end of the term, so long as the landlord 
has not been party to any act after its determination involving a recog- 
nition of the tenancy {Cohh v. Stokes, 1807, 8 East, 358 ; 9 E. E. 464). 

{d) While the double rent statute is silent as to the kind of holding 
over on the part of the tenant necessary to bring it into play, the double 
value statute in terms restricts it to one which is "wilful;" and this has 
been interpreted to mean a holding over with knowledge of its wrong- 
fulness {Sicinfen v. Bacon, 1861, 6 H. & N. 846), as distinguished from 
one in the exercise of a Mr {Hirst v. Horn, siqyra) claim of v\g\\t {Wright 
V. Sniith, 1805, 5 Esp. 203). Where, for instance, the holding over is'by 
an under-tenant, the tenant cannot be made liable under the statute 
without proof of its having been authorised by him {Ramls v. Clark, 
1870, 19 W. E. 48). 



DEAINAGE 9 

(e) Both double rent and double value are payable only during the 
actual tnne of the holding over. But while the penalty in the former 
case is by its very nature a specific sum, that in the latter is merely 
payment " at the rate of double the yearly value " of the premises held 
over. This is not necessarily double the rent the tenant has been paying, 
though it is perhaps generally estimated on that footing ; but it is the 
sum which an occupier would give, and which the landlord, but for the 
holding over, would have received, for the use of the freehold and every- 
thing connected with it during the time the possession has been with- 
held (EoUnson v. Learoyd, 1840, 7 Mee. & W. 48 ; 56 R. R. 610). And 
as the double value given by the statute is that of the " lands, tenements, 
and hereditaments " held over, the value of anything not in the nature 
of real property which may be demised with the premises {e.g. steam 
power in a mill), is not to be taken into account (s. c). 

(/) Unlike the double rent statute, which contemplates the con- 
tinuance of the relation of landlord and tenant between the parties, the 
double value statute allows of the action being brought against a person 
whom the landlord has decided to treat as a trespasser, and against 
whom he has brought ejectment (Soulsby v. Neving, 1808, 9 East, 310; 
9 R. R. 567). The present practice indeed provides that a claim for 
double value may be joined with a claim for the recovery of land 
without the leave of the Court, which is in general required in such 
cases to be obtained (R. S. C, 1883, 0. 18, r. 2). 

The action of double value may be brought by a mortgagee {Poole 
V. Warren, 1838, 8 Ad. & E. 582), as owner of the reversion within the 
statute. But it cannot be brought by a person to whom a new lease 
has been granted to commence at the expiration of the tenancy held 
over {Blatchforcl v. Cole, 1858, 5 C. B. N. S. 514). One tenant in 
common may bring the action in respect of his share {Cutting v. Derby, 
1776, 2 Black. W. 1075). The action can, if the sum claimed do not 
exceed £100, be brought in the County Court (see Wickliani v. Lee, 1848, 
12 Q. B. 521 ; 76 R. R. 334). 

Where the landlord accepts the ordinary rent after this right to 
double value has accrued, it is a question of fact whether he intended 
to waive such right or only to receive the money in part satisfaction of 
the larger claim {Ryal v. Rich, 1808, 10 East, 48). 

DOAVCr. — See Husband and Wife. Dower, curtesy, and the like 
estates are treated as " property settled by will " for purposes of estate 
duty (Finance Act, 1894, s. 22 (3)). 

Drainag'e. — Arterial Land Drainage. — The present statutory 
regulations for providing arterial drainage for agricultural lands date from 
1531, when the statute known as the Bill of Sewers, 23 Hen. viii. c. 5, 
was passed. This Act has been amended in 1708, 7 Anne, c. 10 ; in 
1833, 3 & 4 Will. IV. c. 22 ; in 1841, 4 & 5 Vict. c. 45 ; in 1849, 12 & 13 
Vict. c. 50; and, finally, in 1861, 24 & 25 Vict. c. 133. Besides these 
general Acts, a very large number of local Acts give special powers 
applicable to different districts. The Acts are complicated, and the 
powers given are not always sufficient to secure their object of pre- 
venting floods and ridding land of superfluous moisture. But though 
further legislation has been recommended, and bills for the purpose 
have been introduced into Parliament, notably in 1881 and 1883 and 
1897, they have not become law. 



10 DKAINAGE 

Commismmers of Sewers. — Under the earlier Acts, commissions of 
sewers may be appointed by the Crown from time to time within defined 
limits "to survey the walls, streams, ditches, banks, gutters, sewers, 
gates, calcies, bridges, trenches, mills, mill-dams, flood-gates, ponds, lochs, 
bebbing-wears and other impediments, lets, and annoyances ' to the flow 
of water,' and the same cause to be made, corrected, repaired, amended, 
and put down as the case shall require " (Act of 1531, s. 2). This juris- 
diction was by sec. 10 of the Act of 1833 declared to extend over "all 
walls, banks, culverts, and other defences whatsoever situate or being by 
the coasts of the sea, and all navigable rivers, streams, sewers, and 
water-courses which now are, or hereafter shall or may be, navigable, or 
in which the tide may ebb or flow, or which directly or indirectly com- 
municate with any such navigable or tide river, stream, or sewer, and all 
walls, banks, culverts, bridges, dams, flood-gates, and other works erected 
or to be erected in, upon, over, or adjoining to any such rivers, streams, 
or water-courses;" but the Commissioners are not to interfere with 
ornamental works constructed near a dwelling-house, unless they flrst 
obtain the written consent of the owner or proprietor. By sec. 16 of 
the Act of 1861 it is provided that the powers of Commissioners acting 
within their jurisdiction shall extend (1) to maintenance of existing 
works ; (2) to improvement of existing works ; and (3) to construction 
of certain new works, i.e. " making any new water-course or new outfall 
for water, or erecting any new defence against water, erecting any 
machinery, or doing any other act required for the drainage, necessary 
supply of water for cattle, warping or irrigation of the area comprised 
within their limits. 

Under the original Act the Commissioners had no power to execute 
new works {Isle of Ely Case, 1637, 10 Co. Eep. 141). They were first 
empowered to execute any such works by the Act of 1833, but the 
power so granted was practically worthless, inasmuch as it could only 
be exercised when the Commissioners had obtained the written consent 
of the owners of three-fourths at least of the lands proposed to be 
charged with the costs of making such works (s. 21). The general 
power given by the Act of 1861 to make new works is not subject to 
any restriction unless the works are costly. If the cost of improvements 
or new works is to exceed £1000, notices must be published describing 
the nature of the work, the amount of expense to be incurred, and the 
area within which a rate is to be levied for meeting the expense (s. 29) ; 
and, thereupon, if within two months the proprietors of half the area 
signify in writing their dissent, the work may not proceed. If they do 
not do so, their acquiescence is presumed, and the works may be carried 
out (s. 31). 

In order to carry out their duties effectively, the Commissioners 
sometimes require to purchase the land. They are empowered to do so 
for the maintenance of existing works by the Act of 1833, ss. 24-38. If 
land is wanted for new works it must be taken under the Act o& 1861, 
by sec. 21 of which the Board of Agriculture can now issue provisional 
orders empowering them to take lands compulsorily. Funds to defray 
ordinary expenses are raised by means of rates, which Courts of Sewers 
are einpowered to impose from time to time, from lands, tenements, and 
hereditaments within their jurisdiction, so that such lands, etc., shall 
contribute thereto in proportion to the benefit received, or capable of 
being received, from the Court (Act of 1841, s. 1). In case of improve- 
ments involving an expenditure of over £1000 on new works, the money 



DRAINAGE 11 

is to be raised by a special rate, which is to be deemed to be a tax on the 
owners of property (Act of 1861, s. 38). The Courts may also borrow 
money, under sec. 41 of the Act of 1833, on the security of the lands 
benefited, or on the security of the general sewers rate under sec. 4 of the 
Act of 1841 and sec. 40 of "the Act of 1861. 

Prior to 1861 the Court must be put in motion by the presentment 
of a jury — in the nature of a grand jury who were sworn to inquire 
(a) into any obstruction or want of repair ; (b) by whose default they 
were occasioned ; and (c) who was liable (Act of 1531, s. 3 ; Act of 1833, 
s. 11). If a jury has once presented that any person is liable to repair 
any particular work, no further presentment against him is necessary 
during the continuance of the Commission ; but the Commissioners may 
from time to time order him to maintain or repa^ir it (s. 13). The Act 
of 1861 (s. 33) enables Commissioners of Sewers without any previous 
presentment of a jury to make any order in respect of the execution of 
any work, etc., subject to the right of any person aggrieved to appeal 
to Quarter Sessions ; which Court may confirm, annul, or modify the 
order (s. 47), or may refer the matter to the arbitration of one or more 
persons to be appointed by the parties, or in case of their disagreement 
by the Court (s. 48). Many commissions still act solely on the pre- 
sentment of a jury, and in some cases, where their powers are derived 
under a local Act, it may be doubtful whether the general Act of 1861 
applies. 

Commissions were originally issued for a term of three years, at the 
end of which time they lapsed unless renewed, subsequently the term 
was extended to ten years, and now they continue until superseded 
(Act of 1861, s. 14). Since that Act new commissions are only issued 
or the powers or areas of existing commissions altered, after inquiry by 
and on the recommendation of the Inclosure Commissioners (now Board 
of Agriculture). The Court is a Court of record (Duke of Neu'castle 
v. Clark, 1818, 8 Taun. 602; 20 E. R. 583). 

Drainage Boards. — Instead of Commissioners of Sewers, nominated by 
the Crown, all the powers of such Commissioners may be vested in an 
elective drainage Board, having jurisdiction over a separate drainage 
district. Such Boards may be formed by the Board of Agriculture by 
provisional order, on the petition of not less than one-tenth in acreage of 
the proprietors of any area that requires a combined system of drainage, 
warping, or irrigation. Unless the provisional order otherwise directs, 
the electors are to be the persons paying the sewers rate, and to have 
votes according to the amount at which they are rated. The members 
hold office for a year, and are eligible for re-election (Act of 1861, 
ss. 66-71). The Act, by Schedule II., regulates the procedure of these 
Boards. They may delegate any of their powers to committees, con- 
sisting of such member or members as they think fit (s. 46), but a 
committee cannot delegate its powers {Cook v. Ward, 1876, 2 C. V. D. 
255). 

See Kennedy and Sanders on Drains and Sewers. 

Drainage hy Private Owners. — Many Acts deal with the drainage of 
land by individual owners and tenants. The Land Drainage Act, 1861, 
empowers any person interested in land who desires to drain the same 
to obtain the consent of another owner to the opening of new drains, 
or the cleansing, widening, straightening, or improvement of existing 
drains through or on the lands of such owner on such terms and on 
payment of such compensation as he may require (ss. 72-75). If within 



12 DRAINS AND SEWERS 

one month after the application such owner fail to express his assent, 
two justices or an arbitrator are to decide (1) whether the proposed 
drains or improvements will cause any injury to such owner or to the 
occupier or other person interested in the lands ; and (2) whether any 
injury may be compensated in money. If the decision is that irrepar- 
able injury will be caused, the works may not be made, but otherwise 
the applicant is entitled to make them, in spite of the owner's dissent 
(s. 76). When drains have been opened or improvements made, the 
applicant, his heirs and assigns, are empowered for ever thereafter to 
clear out, scour, and maintain them in a proper state of efficiency 
(8. 79). 

By the Public Money Drainage Acts, 1846-1856, 9 & 10 Vict. c. 101 ; 
10 & 11 Vict. c. 11; 11 & 12 Vict. c. 119 ; 13 & 14 Vict. c. 31; and 
19 & 20 Vict. c. 9, the Treasur}^ were empowered to advance public 
money to owners of land for the purpose of improving it by works of 
drainage. In 1849 an Act, 12 & 13 Vict. c. 100, was passed to promote 
the advance of private money for drainage of lands. This latter Act 
was repealed in 1864, and its provisions re-enacted in the larger Im- 
provement of Land Act of that year, 27 & 28 Vict. c. 114. Among the 
improvements of land contemplated by that Act are — (1) drainage and 
the straightening, widening, deepening, or otherwise improving the 
drains, streams, and water-courses of any land ; (2) the irrigation and 
warping of land ; (3) the embanking and weiring of land from the sea 
or tidal waters, or from lakes, rivers, or streams, in a permanent manner 
(s. 9). Any landowner — or owners — may apply to the Inclosure Com- 
missioners (now Board of Agriculture) for their sanction for proposed 
improvements (ss. 11, 12). If they find that the proposed improvements 
will effect a permanent improvement in the value of the lands exceed- 
ing the yearly amount to be charged thereon, they are to give their 
sanction (s. 25) by provisional order (s. 27). Such order is full authority 
to the landowner and those employed by him to enter on the land and 
carry out all the improvements sanctioned by the order (s. 34). The 
expenses may be made a charge on the inheritance (ss. 49 et seq). 

By the Settled Land Act, 1882, 45 & 46 Vict. c. 38, s. 30, the 
enumeration of improvements in sec. 9 of the Act of 1864 is ex- 
tended so as to comprise all improvements authorised by the later 
Act. Drainage in all forms is among the improvements so authorised 
(see 8. 25). Capital money in settlement may therefore be expended 
on such works (s. 21 (119)); and if a certificate from the Board of 
Agriculture, or of a competent engineer or practical surveyor named by 
them, is obtained, trustees may apply money in their hands in payment 
for them (s. 26). See also Sewers, Commissioners of. 

[Auth<y)<ties. — See, in addition to the authorities mentioned in the 
text, tlie list appended to the article Public Health.] 

Drains and Sewers The word drain is used in English 

law in dillerent senses, according to the subject-matter to which it is 
applied. The primary meaning of the word is a passage-pipe or open 
channel for the removal of water or other liquid, especially from land or 
houses (see Century Dictionary, p. 1758). 

HoiiM Drains.— By tlie Public Health Act, 1875 (in this article 
called P. H.), 38 & 39 Vict. c. 55, s. 4, which repeats the words of the 
earlier Act of 1848, now repealed, " drain" is defined as meaning "any 
drain of, and used for the drainage of, one building only, or premises 



DRAINS AND SEWEES 13 

within the same curtilage, and made merely for the purpose of com- 
municating therefrom with a cesspool, or other like receptacle for 
drainage, or with a sewer into which the drainage of two or more 
buildings or premises occupied by different persons is conveyed." All 
other drains, except drains vested in or under the control of a road 
authority, which is not also a local sanitary authority, are included 
under the term " sewer." In every case it must be decided as a question 
of fact whether premises are to be considered as one building or as more. 
A pair of semi-detached houses may be one building or separate build- 
ings {Hcdley v. Wehh, [1901] 2 Ch. 126; Humphreij v. Young, [IWS'\ 
1 K. B. 44). 

If a pipe is merely used for the drainage of one building or premises 
within the same curtilage, and conveys the sewage into a cesspool or a 
sewer, it is a drain. The distinction is important, as the occupier or 
owner of the premises is responsible for a drain, while sewers vest in 
and are under the control of the local sanitary authority (s. 13). 

In urban districts no house newly erected or rebuilt since the year 
1848 may be occupied unless it has a proper covered drain communi- 
cating with a public sewer, if there is one within 100 feet, or else with 
a covered cesspool, which must not be under the house. The drain 
must be of such size and materials, and at such level, and with sucli fall 
as the urban authority consider necessary (P. H. Act, 1875, s. 25). It 
has been decided that the urban council can only consider whether the 
proposed drain is sufficient for the drainage of the house. They cannot 
require it to be made so as to fit in with their system of sewers, e.g. they 
cannot require two drains, one for sewage and another for rain-water 
{Mattheios v. StmcJian, [1901] 2 K. B. 540). They may, however, require 
a separate drain to be provided for each house, and are not obliged to 
sanction a combined drain, i.e. seiver, for two or more houses ( Woodford 
D. C. V. Stark, 1902, 86 L. T. 685). Besides this, if a sanitary authority 
consider any house within their district to be without a drain sufficient 
for effectual drainage, they may require the owner or occupier to 
provide one to their satisfaction; and, if their notice is not complied 
with, may provide it themselves at his expense {ibid., s. 23). The local 
authority are the judges of what constitutes a sufficient drain; and 
their decision can seldom be reviewed by any legal tribunal {Austin v. 
Lamheth Vestry, 1858, 27 L. J. Ch. 677). 

Similar provisions as to sanitary conveniences for new houses erected 
since 1848, and as to requiring them in other cases where it is considered 
necessary, are contained in sees. 35-38. 

By sec. 21 the owner or occupier of any premises within the district 
of a local authority is entitled to cause his drains to empty into their 
sewers, on giving proper notice of his intention to do so, and complying 
with their regulations as to the mode in which the communication is to 
be made. This, however, gives no right to connect or use a drain in 
defiance of the regulations {Charles v. Finchley Board, 1883, 23 Ch. D. 
767). There is no right to turn sewage into any sewers but those which 
are vested in the local authority (Z. & N.- W. Rly. Co. v. Runcorn D. C, 
1898, 1 Ch. 562). There is no right to connect a house drain, convey- 
ing sewage properly so called, with a sewer constructed to carry off rain 
and slop-water only {Graham v. Wroughton, [1901] 2 Ch. 451). If the 
sewer is in an adjoining district, and therefore vested in another local 
authority than that under whose jurisdiction the premises are situate, 
the drain may still communicate with it, but only on such terms and 



14 DKAINS AND SEWERS 

conditions as may be agreed on, or may be settled by arbitration or by 
justices in case of difference (s. 22). In such cases the local authority 
can, and usually does, insist on payment for the privilege. 

The cleansing and repairing of house drains \^ jprimd facie the duty 
of the occupier of the premises to which they belong {Russell v. Shenton, 
1842, 3 Q. B. 449 ; 61 R R. 249). Every local authority must provide 
that all drains, closets, etc., within their district are constructed and 
kept so as not to be a nuisance or injurious to health (P. H. Act, 1875, 
8. 40). On written complaint that any drain, etc., is a nuisance or 
injurious to health, they may empower their officers to enter and 
examine the premises complained of. If the drain, etc., on examina- 
tion appears to be in bad condition, or to require alteration or amend- 
ment, the local authority shall forthwith give the owner or occupier of 
the premises notice to do the necessary work ; and, in default, may 
themselves do the work at the expense of the owner {ibid., s. 41). The 
local authority seem to be the sole judges of what works are necessary 
{Eargrcavesv. Taylor, 1863, 3 B. & S. 54). Among the things enumerated 
in sec. 91 as nuisances, which may be dealt with summarily, are — any 
" cesspool, drain, or ashpit, so foul or in such a state as to be a nuisance 
or injurious to health." The local authority, on being satisfied of the 
existence of the nuisance, are to serve a notice on the person by whose 
act, default, or sufferance the nuisance arises or continues, or, if such 
person cannot be found, on the owner or occupier of the premises on 
which the nuisance arises, requiring him to aljate the nuisance, and to 
execute such works and do such things as may be necessary for that 
purpose (s. 94). If the notice is not complied with, the case is brought 
before a Court of summary jurisdiction, who, if satisfied that the nuisance 
exists, or is likely to recur, shall make an order requiring the abatement 
of the nuisance, and the execution of any works necessary for that pur- 
pose (s. 96). These powers have frequently been invoked for the purpose 
of remedying nuisances arising from defective drains ; and, when properly 
enforced, are effective. 

In London the definition of sewer is the same as that given by the 
P. H. Act; but sometimes a cbriiri may serve more than one house, 
as that word includes "any drain for draining any group or block 
of houses by a combined operation under the order of any vestry or 
district board" (18 & 19 Vict. c. 120, s. 250; vide infra). 

It has frequently been decided that where a pipe, supposed to be 
a private drain, takes the sewage of two or more houses, it ipso facto 
becomes a sewer {Humphries v. Cousins, 1877, 2 C. P. D. 239 ; St. Martin's 
Vestry v. Bird, [1895] 1 Q. B. 428). In such cases the drain becomes a 
sewer from the point where it receives the sewage of the additional 
house {Kershaw v. Taylor, [1895] 2 Q. B. 471). The result of this state 
of the law was found to be that builders, by making a drain serve two 
or more houses — often without the sanction or even the cognisance of 
the sanitary authority — were enabled to get rid of the liability tcf keep 
such drain in repair, which would properly attach to themselves or to 
tliose who should subsequently become owners of such houses, and to 
shift the burden on to the local authority, i.e, the ratepayers of 
the district generally. A partial remedy for this anomaly has been 
provided by the P. H. Act, 1890, 53 & 54 Vict. c. 59, s. 19, in districts 
where Part III. of that Act has been adopted by the local authority. 
For the purpose of that section, the definition of the word "ilrain" is 
extended so as to include a drain used for the drainage of more than one 



DKAINS AND SEWEKS 15 

building, which would otherwise be deemed a sewer ; and it is enacted 
that where two or more houses belonging to different owners are con- 
nected with a public sewer by a single private drain, the local authority 
may, in cases where such drain is a nuisance or injurious to health, 
require the owner or occupier of the premises to do the necessary works 
to put it right ; and, if they have to do such works themselves, may 
recover the expenses of so doing from the owners of the houses, in such 
shares and proportions as shall be settled by their surveyor or (in case 
of dispute) by a Court of summary jurisdiction. The meaning of the 
section has been much discussed in the Courts. It may now be taken 
as settled that it only takes drains which serve more than one house out 
of the definition of sewers, for the purpose of the section, i.e. for the pur- 
pose of charging the cost of their repair on the owners of the property 
in which they are situate, instead of the local authority {Bradford v. 
Mayor of Easthourne, [1896] 2 Q. B. 205; Thomson v. Mayor of Eccles, 
[1905] 1 K. B. 110). The case of the drain serving several houses 
belonging to one owner is not provided for ; it is a sewer, as it is only 
for the purposes of sec. 19, and so far as that section applies, that such 
a pipe is to be considered a drain {Bradford v. Mayor of Eastbourne, 
supra; Jackson v. Wimbledon U. D. C, [1905] 2 K. B."27). 

If pipes connected with several houses belonging to one owner, 
which by the definition are sewers and not drains, discharge into a 
pipe which would be a drain within the meaning of this section, and 
so communicate with the main sewer, the pipe is not to be considered 
a drain, but must be repaired by the local authority as a sewer ( Wood 
Green D. C. v. Joseph, [1907] 1 K. B. 152). Many judges have pointed 
out that this legislation requires amendment. When Parliament will 
put matters on a rational footing remains to be seen. 

Sewers. — By sec. 13 of the P. H. Act, 1875, all existing and future 
sewers (as defined by sec. 4, supra) within the district of a local 
authority — together with all buildings, works, materials, and things 
belonging thereto — vest in, and are under the control of, that authority. 
The local authority thus become owners of so much of the soil as is 
occupied by the sewer, so long as it is so occupied {Taylor v. Oldham 
Corporation, 1876, 4 Ch. D. 395); if, however, the sewer should cease to 
exist, the property in the ground which it had occupied would revert 
to the landowner {Rolls v. St. Georges, Southwark, 1880, 14 Ch. D. 785). 
Pipes laid for sewers, but which, for want of outfall, cannot carry off 
sewerage, are not sewers, and so do not vest in the local authority 
{Meader v. West Coives Board, 1892, 67 L. T. 454); and the Act excepts 
from the sewers which so vest (1) sewers made by any person for liis 
own profit, or by a company for the profit of the shareholders; (2) 
sewers made for the purpose of draining, preserving, or improving land, 
under a local or private Act of Parliament, or for irrigating land; 
(3) sewers under the authority of any commissioners of sewers (see 
infra). By sec. 14 a local authority may purchase or acquire any sewer 
or any right of making, or of user, or other right in or respecting a sewer ; 
and by sec. 18 they may from time to time enlarge, lessen, alter the 
course of, cover in, or otherwise improve any sewer belonging to them ; 
they may also discontinue, close up, or destroy any sewer that in their 
opinion has become unnecessary, on condition of providing another for 
the use of any person served by the one so discontinued. By sec. 16 a 
local authority may carry their sewers through, across, or under any 
street, public or private, within their district, and also, after giving 



16 DRAINS AND SEWEES 

reasonable notice, through private lands, wherever it appears to their 
surveyor necessary to do so. They are not obliged to purchase any 
land for the purpose {Hill v. Wallesey Board, [1894] 1 Ch. 133), but 
must, of course, compensate the landowner for any injury caused by 
the construction of the sewer. TJiis power does not extend to works 
for disposal of sewage, e.g. a pumping station. For such purposes land 
must be acquired by purchase {Kings College v. Uxhridge D. C, [1901] 

2 Ch. 761). 

Sec. 15 enacts that every local authority shall keep in repair all 
sewers belonging to them ; and shall cause to be made such sewers as 
may be necessary for effectually draining their district; and sec. 19, 
that they shall cause all sewers belonging to them to be constructed, 
covered, ventilated, and kept, so as not to be a nuisance or injurious to 
health, and to be properly cleansed and emptied. The meaning of these 
sections has been frequently discussed in cases where plaintiff's have 
sought to make local authorities responsible for failure to discharge the 
duties so imposed. Sec. 299 provides that the Local Government Board 
may interfere, where complaint is made that a local authority have 
made default in providing their district with sufficient sewers, or in the 
maintenance of existing sewers, and may order the necessary works to 
be carried out within a limited time. Obedience to the order may be 
enforced by a writ of mandamus, or the Local Government Board may 
appoint some person to perform the duty at the expense, and with the 
powers of, the defaulting local authority. The discretion of the Local 
Government Board in making or refusing these orders is unfettered. If 
they refuse to make an order, the Courts will not grant a mandamus to 
compel them to do so {E. v. Tottenham Board, 1893, 9 T. L. R. 414); 
and where an order has been made, the Courts consider themselves 
practically bound to grant a mandamus to enforce obedience to it {E. v. 
Staines Board, 1893, 69 L. T. 714). In case default is made by a rural 
district council, there is an alternative appeal to the County Council 
instead of to the Local Government Board, under sees. 16 and 19 of the 
Local Government Act, 1894, 56 & 57 Vict. c. 73. The County Council 
in such cases may assume the powers and duties of the defaulting dis- 
trict council for the purpose of the matter complained of, or may make 
an order similar to that which the Local Government Board can make, 
and enforce compliance with it as they can. The County Council can 
only act on complaint by Parish Council or meeting ; while the Local 
Government Board can act on any complaint which they consider well 
founded, from whatever source it comes. No one, except the Local 
Government Board, has control over an urban sanitary authority. An 
individual who is aggrieved by reason of adequate sewers not being 
provided, cannot maintain an action for damages against the local 
authority for their neglect to perform this statutory duty, even though 
he can show tliat this neglect has caused pecuniary loss to himself 
{Robinson v. Mayor of Workington, [1897] 1 Q. B. 619). Nor can he 
invoke the assistance of a Court of justice, instead of the Local Govern- 
ment Board, by an action claiming a mandamus to the local authority 
to perform their statutory duty {Peebles v. Osivaldtwistle Urban DiMrict 
Council, [1897] 1 Q. B. 625 ; Passmore v. O^valdtwistlc D. C, [1898] 
A. C. 387). A local authority may, however, on an information filed in 
the name of the Attorney-General, be restrained from allowing their 
sewers to cause a permanent and serious nuisance {A.-G. v. Mayor of 
BasiyigstoJce, 187 Q, 4^ L. J. Ch. 726); but cannot be restrained in pro- 



DEAINS AND SEWERS 17 

ceedings at the suit of a private individual. Where, however, injury is 
caused by reason, not of the nonfeasance or failure of a local authority 
to perform their statutory duty, but of negligence in its performance, an 
aggrieved individual has a right of action ( White v. Jlindhy Board, 1875, 
L. E. 10 Q. B. 214; Hammond v. Bt Fancras Vestnj, 1874, 9 L. R. Q. B. 
157 ; Blackmore v. Mile End Vestry, 1882, 9 Q. B. D. 451). 

The construction and management of sewers and drains in the 
metropolis is regulated by different statutes (the Metropolis Manage- 
ment Acts, 1855 to 1898). Their provisions are in most respects 
similar to those of the P. H. Acts, but are not identical. By the 
definition clause of the Act of 1855, 18 & 19 Vict. c. 120, s. 250, 
drain shall mean and include any drain of, and used for the drainage of, 
one building only, or premises within the same curtilage, and made 
merely for the purpose of communicating with a cesspool or other 
receptacle for drainage, or with a sewer into which the drainage of two 
or more buildings or premises occupied by different persons is conveyed, 
and shall also include any drain for draining any group or block of 
houses, by a combined operation, under the order of any vestry or dis- 
trict board ; and the word " sewer " shall mean and include sewers and 
drains of every description, except drains to which the word " drain," 
interpreted as aforesaid, applies. Power to approve of houses being 
drained by a combined operation is given by the Act. Questions have 
frequently arisen as to whether a pipe conveying sewage from several 
houses was a combined drain repairable by the owners of the premises 
or a sewer repairable by the local authority. The result of the cases 
seems to be that such a pipe is a sewer and not a drain, unless it can be 
shown that it was constructed as a combined drain with the sanction 
and approval of the authority having jurisdiction at the time of its con- 
struction {Bateman v. Poplar Bd., 1886, 33 C. D. 360 ; Kershaw y. Taylor, 
[1895] 2 Q. B. 471). The subsequent connection of another drain, even 
if unauthorised, may convert such combined drain into a sewer {Green 
V. Newington Vestry, [1898] 2 Q. B. 1). 

The law was carefully considered, and the effect of the previous 
decisions collated by Channell, J., in the case of Heaver v. Fidham 
Borough Council, [1904] 2 K. B. 383. When a plan for the erection of 
several houses drained by one drain had been approved by the vestry, 
he drew the inference that the combined drain had been constructed 
with their approval. He also held that if a pipe had been wrongfully 
connected with a drain by the owner of the property, that fact would 
not entitle him to claim that the drain was thereby converted into a 
sewer, whatever rights it might confer on an innocent purchaser. 

Cesspools. — The drains of all houses may now be required to com- 
municate with a public sewer, where there is one within 100 feet of the 
house ; and if there is none, then into such covered cesspool or other 
place, not being under a house, as the sanitary authority direct (P. H. 
Act of 1875, s. 23). In urban districts sewers are usually available, 
but in rural districts drains still commonly communicate with cesspools. 
They are private property ; but sanitary authorities have ample powers 
and duties for preventing them from becoming nuisances. It is their 
duty to provide that all cesspools within their district be so constructed 
and kept as not to be a nuisance or injurious to health (s. 40). For this 
purpose they can empower their surveyor or inspector of nuisances to 
enter premises and cause the ground to be opened, and examine any 
cesspool reported to be a nuisance or injurious to health; and if the 
VOL. v. 2 



18 DKAINS AND SEAYEIIS 

cesspool appear to be in a bad condition, or to require alteration or 
amendment, may require the owner or occupier of the premises to do 
the necessary works, under a penalty of ten shillings for each day 
during which he continues to make default (s. 41). In an urban dis- 
trict, any person who allows the contents of a cesspool to overflow or 
soak' therefrom is liable to penalties (s. 47) ; and in both rural and urban 
districts, any cesspool so foul or in such a state as to be a nuisance or 
injurious to health is a nuisance which may be dealt with summarily 
(s! 91). Local authorities are empowered to make by-laws, imposing on 
the occupier the duty of cleansing cesspools belonging to any premises 
at such intervals as they think fit (s. 44). They also may, and when 
required by order of the Local Government Board shall, themselves 
undertake or contract for the cleansing of cesspools (s. 42) ; and, where 
they have done so, become liable to pay a penalty to the occupier should 
they fail, without reasonable excuse, to cleanse a cesspool belonging to 
or used by the occupiers of any house (s. 43). The liability to pay this 
penalty apparently relieves the sanitary authority from any claim for 
damages consequent on their neglect, which the aggrieved occupier 
might otherwise have maintained against them {Sanders v. Holhcn^n 
District Board, [1895] 1 Q. B. 64). If the summary proceedings are 
insufficient to make them perform their duty, the Local Government 
Board can interfere under sec. 299. 

In London similar powers for regulating cesspools are given by the 
Act of 1891. But the County Council are directed to make by-laws as 
to the closing and filling up of cesspools, and for prescribing the times 
for the removal or carriage, by road or water, of any fiiecal or offensive 
or noxious matter or liquid in or through London, and providing that 
the carriage or vessel used therefor shall be properly constructed and 
covered, so as to prevent any nuisance (s. 16). They are also to make 
by-laws for the regulation of cesspools and receptacles for dung, and the 
proper accessories thereof, in connection with buildings, whether con- 
structed before 1891 or after (s. 39). Sanitary authorities may examine 
cesspools (s. 40), and if one should be found not to have been made in 
accordance with the by-laws or the directions given in any notice under 
the Act, or if any person without the consent of the sanitary authority 
constructs or rebuilds any cesspool which has been ordered by them not 
to be made or to be demolished, the person offending becomes liable to 
penalties, and the sanitary authority may require the work to be altered 
or reinstated in accordance with the by-laws or directions, or to be 
demolished, or may, in lieu of proceeding for a fine, enter the premises 
and cause the work to be done at the expense of the person who has 
offended. If the examination shows the cesspool to be in bad order and 
condition, or to require cleansing, alteration or amendment, or to be 
filled up, notice is to be served on the owner or occupier of the premises 
requiring him to do what is necessary to place the work in proper order 
and condition ; and sanitary authorities may in such case also^ either 
enforce the penalties or do the work themselves. Any person who 
thinks himself aggrieved by any notice or act of the sanitary authority 
may appeal to the County Council, whose decision sliall be final (s. 41). 
While the owner and occupier are thus made responsible for the proper 
construction and maintenance of cesspools in the metropolitan area, the 
duty of cleansing out and emptying them is imposed on the sanitary 
authority, who are made liable to a fine, not exceeding £20, if they 
neglect to do the necessary work for forty-eight hours after notice that 



DEAINS AND SEWEES 19 

it requires to be done (s. 30). Formerly these matters were regulated 
by the Metropolis Management Act, 1855 (now in great measure 
repealed). Under it the Courts held that a person aggrieved by the 
neglect to perform these duties had a right of action against the 
defaulting sanitary authority {Holhorn Guardians v. Vestry of St. 
Leonard's, Shoreditch, 1876, 2 Q. B. D. 145); but that such authority 
was released from its responsibility if it deputed the doing of the work 
to a proper contractor, even though he failed to carry out his contract 
(Mlis V. Strand District Board, 1892, 67 L. T. 306). The present Act of 
1891, however, uses different language from that of the corresponding 
sections of the earlier Act, and no action would now seem to be main- 
tainable {Sanders v. Holhorn District Board, supra). 

As to cleansing of gratings and gullies in metropolis, see 57 & 58 
Vict. c. ccxii. s. 16. 

The duty to provide sewers is nominally extended by the Elvers Pollu- 
tion Act, 1876, 39 & 40 Vict. c. 75, s. 7, which requires local authorities 
to give facilities for enabling manufacturers within their district to carry 
the liquids proceeding from their factories or manufacturing processes 
into the sewers. The local authority are not, however, bound to give 
such facilities, where their sewers are only sufficient for the require- 
ments of their district, nor are they bound to admit any liquid which 
would prejudicially affect the sewers themselves, or the disposal of the 
sewage matter, or which would be injurious in a sanitary point of view. 
This additional statutory duty may therefore be considered as more 
nominal than real, as, even where the sewers are undoubtedly large 
enough, much manufacturing refuse may be considered unfit to enter 
ordinary sewers. 

Outfall. — Sanitary authorities, in whom sewers are vested, must 
somehow dispose of the sewage without causing a nuisance. For this 
purpose they may, by sec. 27 of the P. H. Act, 1875, {a) construct works ; 
{&) contract for the use of, purchase, or take on lease any land, buildings, 
engines, materials, or apparatus ; (c) contract to supply any person with 
sewage, and as to the execution of works for the purpose of such supply. 
They are empowered by sec. 176 to purchase lands compulsorily, under 
the sanction of the Local Government Board. If they own, or can 
purchase by agreement, suitable lands within their district, and have 
sufficient funds, they can construct their works without first obtaining 
such sanction. Practically the necessity of borrowing money generally 
obliges them to obtain it. In case they propose to execute any such 
works outside their district, notices of the intended work must be 
advertised and the sanction of the Local Government Board obtained, 
after a local inquiry into the propriety of the intended work, and into 
the objections thereto (ss. 32-34). Unless the conditions prescribed by 
these sections are observed, a local authority may not execute any works 
outside their district {Jones v. Conway Board, [1893] 2 Ch. 683). Works 
so constructed vest in, and are under the control of, the authority who 
constructed them, or who may have subsequently acquired them, and 
not in the authority within whose district they are physically situated 

There is no enactment which authorises one district to send its 
sewage into any sewer outside its own limits without the consent of 
the autliority in whom such sewer is vested. Such consent, if given, is 
necessarily only a revocable licence, as local authorities are public bodies 
with limited powers conferred by statute, and cannot exceed those 



20 DRAINS AND SEWERS 

powers. Their duty is to provide such sewers as are necessary for their 
own district, and they may not deprive themselves of the power to 
perform this duty by granting to anyone else a perpetual easement to 
use their sewers {Isliiujtm Vestry v. Hoiiisey D. 6'., [1900] 1 Ch. 695). 

Local authorities are entitled to the easement of support for their 
sewers from the owners of the land through which they run. This was 
held to give the owners of subjacent mines the right to claim compen- 
sation from such authorities for injury sustained by interference with 
their ordinary rights of working their mines {In re Dudley, 1881, 8 Q. B. D. 
86). In consequence of this decision, which imposed a heavy pecuniary 
liability on local authorities on mining districts, the Support of Sewers. 
Act, 1883, 46 & 47 Vict. c. 37, was passed. The effect is to relieve the 
local authority from liability to make compensation, except in cases 
where tliey actually take or interfere with the working of a mine ; and, 
on the other hand, to empower the mineowner to continue his workings 
when close to a sewer if the authority, after due notice, decline to 
compensate him (see Vesey FitzGerald's Public Health Act, pp. 35-37 
and 56-62). 

Sec. 17 of the P. H. Act, 1875, provides that nothing in this Act 
shall authorise any local authority to make or use any sewer, drain, or 
outfall for the purpose of conveying sewage or filthy water into any 
natural stream or water-course, or into any canal, pond or lake, until 
such sewage or filthy water is freed from all excrenientitious or other 
foul or noxious matter, such as would affect or deteriorate the purity 
or quality of the water. This is merely a declaration of previously 
existing law. The section does not prohibit the discharge of surface 
water into a natural stream, etc., provided the water is free from foul or 
noxious matter {Durrani v. Branksomc D. C, [1897] 2 Ch. 291). Neither 
an individual nor a local authority may create a nuisance, unless expressly 
empowered by Parliament to do so. Local authorities which pollute a 
stream are therefore liable to action for damages at the suit of a person 
aggrieved {Cator v. Lewisham Board, 1865, 34 L. J. Q. B. 74), or for an 
injunction to prevent their causing injury to the public {A.-G. v. Cocker- 
mouth Board, 1874, L. R. 18 Eq. 172 ; A.-G. v. Shrewsbury, 1882, 21 Ch. D. 
752). Unfortunately in many districts sewers were in existence, and 
had been fouling streams for many years, before any such section was. 
enacted by Parliament. Persons who had acquired prescriptive rights ta 
discharge the sewage of their premises into such sewers, still can do so. 
Neither they nor the local authority can be restrained {Glossop v. Heston 
Board, 1879, 12 Ch. D. 102 ; A.-G. v. Dorking Union, 1882, 20 Ch. D. 595). 
If, however, fresh sewage is brought into streams or into old sewers. 
connecting with them, that is unauthorised, and may be restrained. 

The Rivers Pollution Prevention Acts, 1876, 39 & 40 Vict. c. 74, and 
1893, 56 & 57 Vict. c. 31, further prohibit the contamination of streams, 
etc., by making it an ofiience — {a) to cause, or {b) to knowingly p'ermit 
solid or liquid sewage matter to fall or fiow into any stream ; and the 
Act of 1893 declares that where any sewage matter falls or fiows, or is 
carried into any stream, after passing along a channel which is vested in 
a sanitary authority, that authority shall be deemed knowingly to permit 
the sewage so to fall, fiow, or be carried. The mere fact, therefore, that 
sewage enters a stream by an old cliannel, and that the sanitary authority 
have done notliing to alter that cliannel, or bring the sewage along it, is. 
no answer to a complaint under these sections. They must show that 
tliey have done their best to remedy the evil, and cannot prevent it 



DKAMA 21 

{Yorkshire C. C. v. Holmforth Urban Sanitary Authority, [1894] 2 Q. B. 
842). The only body entitled under the original Act of 1876 to put the 
law in force was a sanitary authority, though a person interested might 
apply to the Local Government Board to direct the sanitary authority to 
take proceedings (s. 6). This practically rendered the Act nugatory in 
cases where the oft'ence w^as caused by the local authority or by important 
people within their district. The Local Government Act, 1888, 51&52 
Vict. c. 41, s. 14, consequently gave a county council power to enforce 
the provisions of the Eivers Pollution Act in relation to any stream 
situate within or passing through or by their county. This alteration 
has led to the Act being put in force in many cases. The tribunal to 
enforce it is the County Court having jurisdiction in the place where the 
offence is committed. 

See, further, Vesey FitzGerald, Public Health Acts ; Lumley, Public 
Health Act; article County Courts, Vol. IV. p. 146; and Eivers 
Pollution. 

Private Sewers. — We have already seen, supra, p. 15, that there are 
certain classes of sewers which are not vested in the local authority vmder 
sec. 13 of the P. H. Act, 1875. The first class consists of — (a) sewers 
made by any person for his own profit ; and (b) by any company for the 
profit of the shareholders. If the pipe is primarily used for the purposes 
of sanitation it is a sewer vested in the local authority, even though it 
indirectly brings profit to the landowner. Thus sewers constructed by the 
owners of building land, with the object of enhancing its value by attract- 
ing people to build houses on it, vest in the local authority {Acton Bd. v. 
Batten, 1884, 28 Ch. 283 ; Ferrancl v. Halles Land Co., 1893, 2 Q. B. 125). 
But where the owner of part of the land on which a town stood con- 
structed a system of sewers for the town, and received payments from 
the occupiers of all houses connected with the sewers, it was held that 
those were sewers made by him for his own profit, and did not vest in 
the local authority (Minehead Bd. v. Luttrell, [1894] 2 Ch. 178). The 
word " profit " is not to be restricted to direct money payment. Where 
the object of making the sewer is to enable the land to be occupied more 
profitably, it is made for the profit of the occupier. Thus a line of pipes 
which conveyed surface water into a pond in a field, to be there drunk 
by cattle, was held to be a sewer which did not vest in a local authority 
{Croysdale v. Sunbury B. C, [1898] 2 Ch. 515). So also a sewer con- 
structed to take water from a quarry, and thus enable it to be worked 
more profitably, has been held to be within the exception. There is a 
Ijroad distinction between drains made for sanitary purposes and drains 
made for the mere beneficial occupation of land (Sykes v. Sowerby D. C, 
[1900] 1 Q. B. 584). 

The second class of exceptions is sewers made or used for the purpose 
of draining, preserving, or improving land under any local or private Act 
of Parliament, or for the purpose of irrigating land. Under this heading 
drains constructed by a railway company under its special Act for the 
purpose of taking off flood water have been held to be sewers which 
do not vest in the local authority (Z. & N.- W. Ely. Co. v. Runcorn I). C, 
[1898] 1 Ch. 34). 

The third class is sewers under the authority of any commissioners 
of sewers appointed by the Crown. As to these, see article on 
Drainage. See also Sewers, Commissioners of. 

Drama-— See Copyright. 



22 DKAWBACKS 

Drawbacks.— See Customs. 

D r a w i n g^s . — See Copyright. 

Driftway is a way along which a man has a right to drive cattle. 
Every man lias a right to drive cattle along the King's highway ; but 
such a right will not be presumed in the case of any other way ; it must 
be proved by grant or prescription. Long user of the way as a bridle- 
path or a carriage-way is evidence from which a right to ride a horse 
or drive a carriage there may be inferred ; but this does not — necessarily, 
at all events — involve the right to drive loose cattle along that way 
(Ballard v. Dyson, 1808, 1 Taun. 279; 9 K. K. 770). See Bridle-path, 
Vol. II. p. 398, and 17 & 18 Vict. c. 97, s. 9. A man may also have a 
private right to drive cattle along a driftway. Such right may be 
either an easement or a licence ; in the latter case it is not assignable. 
If the inliabitants of a parish are desirous of undertaking the repair 
and maintenance of any driftway within their parish in return for the 
use thereof, they may apply, under sec. 36 of the Highway Act, 1862, 
25 & 26 Vict. c. 61, to the justices in Petty Sessions, who may declare it 
to be a public carriage road to be repaired at the expense of the parish. 
They must, however, first obtain the consent of the owners and occupiers 
of every part of the land along which the way passes, for an additional 
burden would be cast upon such persons by the conversion of the way 
into a public road, and the consequent increase in the number of people 
who would have a right of passage along it. But persons who merely 
enjoy private rights of passage along a driftway are not " occupiers " 
within the meaning of the section, and their consent need not be 
obtained before an application can be made to the justices for its con- 
version into a public way {Rex v. Somers and Others, [1906] 1 K. B. 326). 

Drilling, Unlawful.— To drill or train men in military 
exercise or the use of arms, if done with the object of overturning 
the Government, seems to be an overt act of treason {B. v. Hunt, 1819, 
1 St. Tri. (N. S.) 171 ; Redfm^d v. Birley, 1822, 1 St. Tri. (N. S.) 1071, 1257). 
If tlie object is to overawe the Government, to excite tumult, to offer 
resistance to the civil power, to secure the attendance of the persons 
drilled at seditious meetings, or to give confidence by an appearance of 
strength to disaffected persons, the drilhng is unlawful at common law, 
i.e. the assembly for drilling is an unlawful assembly {s, c). 

The legality of drilling of persons not under military law or 
discipline was first brought into prominence in 1819, by the pro- 
ceedings in Lancashire in furtherance of electoral reform, which 
culminated in the tragedy of Peterloo and the prosecution in R. v. 
Hiint, 1819, 1 St. Tri. (N. S.) 171, owing to the ruling of the judges in 
that case that drilling without arms merely for the purpose of going to 
a pubhc meeting was illegal (cp. R. v. Dewhurst, 1820, 1 St. Tri. (N. S.) 
529). See Assembly, Unlawful. Owing to the prevalence of training 
in I^ncashire and Yorkshire legislation was considered necessary in the 
interests of government as then understood (41 Cobbett Pari. Deb. 851), 
and the Unlawful Drilling Act, 1819, 60 Geo. in. and 1 Geo. iv. c. 1, 
was passed. Under that Act it is illegal for persons to meet or assemble 
for the purpose of training or drilling themselves, or of being trained 
or drilled to the use of arms, or for the purpose of practising military 
exercises, movements, or evolutions, except under lawful authoritv from 



DEINKING FOUNTAINS 23 

the Crown or the Lord Lieutenant, or two justices of the peace for the 
county in which the meeting is (s. 1). 

It is not quite clear whether this provision creates a substantive 
misdemeanor, or whether it merely defines the general elements of the 
two offences next to be described. 

Persons who attend such a meeting to train or drill others, or who 
train or drill others at such meeting, or assist to do so, are guilty of 
felony, and punishable by penal servitude, from three to seven years, or 
imprisonment for not over two years, with or without hard labour 
(60 Geo. III. and 1 Geo. iv. c. 1, s. 1 ; 20 & 21 Vict. c. 3 ; 54 & 55 Vict, 
c. 69, s. 1). 

Persons attending to be drilled or trained, etc., or being trained or 
drilled, etc., are guilty of misdemeanor, and punishable by fine or by 
imprisonment for not over two years, with or without hard labour (60 
Geo. HI. and 1 Geo. iv. c. 1, s. 1 ; 54 & 55 Vict. c. 69, s. 1). 

It is said that this offence is not triable at Quarter Sessions (5 & 6 
Vict. c. 38, s. 1 (16); Archbold, 6V. PL, 23rd ed., 1007); but the Act 
itself (s. 2) speaks of committal for trial at Quarter Sessions. 

Prosecutions must be commenced within six months of the offence 
(60 Geo. III. and 1 Geo. iv. c. 1, s. 7). But it is not essential to state in 
the indictment the date of the offence {B. v. Hunt, 1848, 3 Cox C. C. 
215). The offences under the Act are alternative to any other offence 
constituted by, or incidental to, the particular unlawful meeting (60 
Geo. III. and 1 Geo. iv. c. 1, s. 4; 52 & 53 Vict. c. 63, s. 33). 

Meetings forbidden under the Act may be dispersed by justices or 
the police, and persons present may be arrested or detained without 
warrant. An arresting justice may commit the offenders to the assizes, 
unless sufficient bail is given (60 Geo. iii. and 1 Geo. iv. c. 1). 

Indictments on this Act have been rare in England, and since the 
Chartist riots of 1848, almost, if not quite, unknown. (See B. v. Hunty 
1848, 3 Cox C. C. 215.) 

Illegal drilling has been of far more frequent occurrence in Ireland 
than in England {Gogarty v. B., 1849, 3 Cox C. C. 306). 

Drinking Fountains. — Drinking fountains for the 
gratuitous supply of drinking water to persons or animals in the 
public streets have usually been provided by private benefactions; 
and when provided have been vested in trustees for the public benefit. 
Where not so vested, but given to, or used by, the public prior to 1875, 
they are vested in the local authority of the district (38 & 39 Vict. c. 55, 
s. 64). 

The local authority may cause such works to be maintained and 
plentifully supplied with pure and wholesome water ; or may substitute 
for them and supply other such works equally convenient. In London, 
similar powers are given to the sanitary authorities of different districts, 
who are further empowered to provide and maintain public wells, pumps, 
and drinking fountains in such convenient and suitable situations as 
they may deem proper (54 & 55 Vict. c. 76, s. 51). Outside London 
there seems to be no express power for a local authority to erect 
drinking fountains, but merely a power to maintain fountains already 
existing, and to keep them supplied. Where fountains are vested in 
trustees or private individuals, those persons must provide the requisite 
water. They cannot require the local authority to procure a supply or 
provide it gratuitously. 



24 DRIVING 

Driving'. — Penalty on furious driving (see 5 & 6 Will. iv. c. 50, 
8. 78; 24 & 25 Vict. c. 100, s. 35); omnibus or stage carriage driver in 
the county of London (see 6 & 7 Vict. c. 86, s. 28 ; 13 & 14 Vict. c. 7 ; 
32 & 33 Vict. c. 115); regulations as to drivers within the Metropolitan 
police district (2 & 3 Vict. c. 47, s. 54); driving cattle, or more than 
four horses at once, or a cart laden with timber, ladders, etc., exceeding 
35 ft. in length, except between 10 A.M. and 7 p.m., in specified places in 
the Metropolitan police district (30 & 31 Vict. c. 134, ss. 7, 16). (See 
also Negligent Driving.) 

Droit d'angcarie is the right to detain, to use, and even, if 
necessary, to destroy property belonging to neutral States in time of 
actual warfare. All jurists recognise this as an undoubted belligerent 
right — Hall, De Martens, and Bluntschli, without any reservations; 
but Heffter and others seem unwilling to admit a principle justly 
regarded by them as a great curtailment of neutral rights. In practice, 
the riglit of angary was sanctioned by both England and Austria during 
the Franco-German war, the former in the case of the German seizure 
of Englisli vessels required for the blocking-up of the Seine, and the 
latter in the case of some Austrian rolling-stock which was seized and 
converted into use, though subsequently restored. 

[Authorities. — Hall, International Law, Oxford, 1904, p. 737 ; Blunt- 
schli, Ihmt Int. Codifi4, trans. Lardy, Paris, 1886 ; Heffter, Droit Inter- 
national, s. 150, trans. Bergson, Paris, 1883.] 

Droit d'aubaine was the right of the French sovereign to 
attach the movable and immovable property of an alien dying in 
France, notwithstanding the claims of the alien's testamentary, legal, 
or ab-in testate successors. It was abolished in 1819. 

Droits Of Admiralty-— See Admiralty, The (Vol. I. p. 192). 

Drover. — See Driving and Sunday. A special penalty is 
imposed on a drover found drunk on a highway, by sec. 12 of the 
Licensing Act, 1872, 35 & 36 Vict. c. 94. 

Drowning.— See Murder; Suicide. 

Druggist See Chemist. 

D r u gs . —See Adulteration ; Poison. 

Drunkenness. — The law as to the civil ca;pacity of drunkards 
is identical witli the law as to the civil capacity of insane persons. The 
whole subject is discussed in the article Lunacy. Here it may suffice to 
cite a few leadmg awihoviiiQ^—Molton v. Camroux, 1848, 2 Ex. Eep. 487 ; 
1849, 4 ihid. 17 (which must now be compared with Imperial Loan Co. 
V. StoTu, [1892] 1 Q. B. 599 (contract)); Matthexm v. Baxter, 1873, L. R. 
8 Ex. 132; and see Sale of Goods Act, 1893, 56 & 57 Vict. c. 71, s. 2; 
Co. Kep. iv. 123 (i), n., and Ayrey v. Hill, 1824, 2 Add. 209 (testamentary 
.capacity, wliere the evidence to be adduced in such cases is discussed) ; 
and cp. the American cases of Peek v. Carey, 1863, 27 K Y. 9, and Julke 
V. Adam, 1863, N. Y. Surr. 1, Kedf. 454. 

The law as to the criminal responsibility of drunkards differs from 



DUE 25 

that as to the criminal responsibility of insane persons, or, at least, 
presents special features which must be briefly examined here. 
According to Coke (Co. Litt. 247), the drunkard (whom he described as 
vohmtarnis daemon, the state being dementia affectata) has no privilege in 
consequence of his condition, " but what hurt or ill soever he doeth, his 
drunkennesse doth aggravate it." Hale (P. C. 32) restated this proposi- 
tion in a more accurate form, namely, that a person suffering from this 
voluntarily contracted madness "shall have the same judgment as if he 
were in his right senses," and admitted the existence of two " allays " — 

(1) temporary frenzy induced by the un skilful ness of a physician, etc. ; 

(2) habitual or fixed frenzy, caused by drunkenness. 

In B. V. Grindlay, 1819, cit. 1 Euss. on Crimes, 6th ed., 144, Holroyd, 
J., said that drunkenness might properly be considered by a jury where 
the question is whether the prisoner's act was premeditated or not. 
This dictum was, however, disapproved of in B. v. Carroll, 1835, 1 Car. 
& P. 145, and according to E. v. Mealdn, 1836, ihid. 297, would be 
peculiarly erroneous where a prisoner employed a dangerous or deadly 
weapon. It has, however, met with some degree of recognition in 
Scotland. Drunkenness may be material, however, to the question 
whether there was capacity to form a particular criminal intent; cp. 
B. V. Cruse, 1838, 8 Car. & P. 541 ; B. v. Monkliouse, 1849, 4 Cox C. C. 
55 ; B. v. Dolurty, 1887, 16 Cox C. C. 306 ; B. v. Moore, 1852, 3 Car. & 
Kir. 319. 

Drunkenness is also a factor of which a jury may take account where 
a prisoner acted in self-defence {B. v. Gamlen, 1858, 1 F. & F. 90), or 
under provocation {B. v. Monkliouse, supra ; B. v. Thomas, 1837, 7 Car. 
& P. 817; Pearsons Case, 1835, 2 Lew. C. C. 144; Burrows Case, 1823, 
1 Lew. C. C. 75 ; Marshall's Case, 1830, ihid. 76 ; Goodier's Case, 1831, 
ihid. n.). In Bennies Case, 1825, 1 Lew. C. C. 76, and in B. v. DaviSy 
1881, 14 Cox C. C, per Stephen, J., at p. 564, it was laid down that 
drunkenness is no excuse for crime unless the mental derangement 
arising from it is fixed and continlious. But this ruling has been 
departed from at Nisi Prius (cp. B. v. Baines, Times, Jan. 1, 1886, j:?^^ 
Day, J.). Involuntary drunkenness, resulting from a temporarily 
diseased condition, will exempt a prisoner from responsibility ; cp. B. v. 
Mary B., 1887, cit. Kerr's Inehriety, 2nd ed., p. 395 ; and B. v. Mountain, 
April 1888, Leeds Assizes, per Pollock, B. — both, however, Nisi Prius 
cases. See further Habitual Drunkard ; Inebriates Acts ; Intoxi- 
cating Liquors; Licensing; Police. 

[Authorities. — Euss. on Crimes; Pope on lAinacy, 2nd ed.; Wood 
Pen ton on Lunacy, pp. 911-913.] 

Dry Rent. — Another name for rent seek, which was a rent 
issuing out of land, and which was so called because it could not be 
distrained for. As such rents were, however, made distrainable by 4 Geo. 
II. c. 28, s. 5, the term has now no meaning ; rents since that statute 
being divisible into (1) chief rents, (2) rent charges, and (3) rents 
incident to a reversion. [Hood and Challis, Conveyancing and Settled 
Land Acts, 6th ed., p. 125.] 

Due. — As the effect of the Statute of Limitation is only to bar 
the remedy for a debt, and not to destroy it, the debt still remains 
" due." So where an order obtained on the application of the judgment 
debtor himself directed an account of what was " due " to his judgment 



26 DUE ATTESTATION 

creditor, it was held that the debtor could not avail himself of the 
statute, although he might have used it as a defence to proceedings 
taken against him by the creditor {Ex 'parte Caivley, 1889, 34 S. J. 29). 

Where a testator directed his executors " to forgive to any tenant 
all rent or arrears of rent which may be due and owing from him at the 
time of my decease," it was held that the effect of this direction was to 
forgive to the tenant the rent due at the quarter day preceding the 
testator's death, and that the Apportionment Act, 1870, did not affect 
the bequest so as to entitle the tenant to be forgiven the rent down to 
the date of the testator's death {In re Lucas; Parish v. Hudson, 1885, 
55 L. J. Ch. 101). 

Where an operative is engaged on a weekly hiring, and he or she 
leaves work before the end of the week, no wages are " due " within sec. 

11 of the Employers and Workmen Act, 1875; it is otherwise if the 
operative is employed to do piece-work ( Warhurton v. Heyworth, 1880, 
6 Q. B. D. 1). 

The word " due " may mean either owing or payable, and what it 
means is determined by the context {per Jessel, M.E., in In re Stockton 
Malleable Iron Co., 1875, 2 Ch. D. 101). See Stroud, Jucl. Diet. 

Due Attestation- — See Attestation; Bills of Sale. 

Due Cause. — As to removal of official liquidator under sec. 
9:J (^f the Companies Act, 1862, on " due cause shown," see Vol. III., 
p. 343. 

Due Course. — As to the holder of a bill of exchange "in due 
course," see Vol. II. p. 207. 

Due Course of Administration.— As io,^QQ Scott \. 

Moore, 1844, 13 L. J. Ch. 283. 

Due Dilig^ence. — As to meaning of in sec. 32 of the Patents 
Act, 1883, see article Patents. 

Due Inquiry. — "Due inquiry" must be made before the 
(ieneral Medical Council can, under sec. 29 of the Medical Act, 1858, 
direct the registrar to erase a practitioner's name from the medical 
register for professional misconduct. As to meaning of, see Allbutt v. 
General Medical Council, 1889, 23 Q. B. D. 400 ; Leeson v. General Medical 
Council, 1889, 43 Ch. D. 366 ; Allinson v. General Medical Council, [1894] 
1 Q. B. 750. 

Due Reg'ard. — The Charity Commissioners, in dealing with a 
scheme wliich alxjlishes or modifies any privileges or educational advan- 
tages to which a ])articular class of persons are entitled, must, by sec. 11 
of the Endowed Schools Act, 1869, 32 & 33 Vict. c. 56, have "due 
regard" to the educational interests of such class of persons; and a 
similar duty is imposed by sec. 5 of the Endowed Schools Act, 1873, 36 
& 37 Vict. c. 87. Any substantial privilege adapted to the altered con- 
struction of the school, given to the particular class of persons in lieu of 
the privileges abolished, is a compliance with the direction to have " due 
regard " to tlieir interests {In re Hemsioorth Free Grammar School, 1887, 

12 App. Cas. 444 ; see also In re Hodgson's School, 1878, 3 App. Cas. 857 ; 



DUEL 27 

In re Sutton Cold field Grammar School, 1881, 7 App. Cas. 91 ; Ross v. 
Charity Commissioners, 1882, 7 App. Cas. 463). The powers of the 
Charity Commissioners under these Acts were transferred to the Board 
of Education by Order in Council dated August 11, 1902 (Stat. E. & 0., 
Kev. 1904, vol. iv., "Education" (England), p. 6). 

Duel. — In English law the duel is known in two senses: — 

1. As a form of judicial combat the duel was legal until 1819. See 
Battle, Trial by. At present the title and functions of the ancient 
office of royal champion, still held by the Dymokes of Scrivelsby, are 
the sole remaining vestiges of this mode of testing legal rights. 

2. Theoretically the English law has always refused to recognise as 
legal any form of duel, except that above mentioned, carried on under 
the forms of law. Jousts and tournaments, even those held under royal 
sanction or patronage, were condemned as unlawful {R. v. Coney, 1882, 
8 Q. B. D. 534, 549, see Stephen, J.). Killing men in Chance Medley 
{q.v.), i.e. on a sudden quarrel, was also illegal. 

James i., while only King of Scots, had passed a law (Scots Acts, 
1600, c. 12, and see 1696, c. 35, both repealed in 1819, 59 Geo. m. 
c. 70) making it murder to kill a man in a duel held without royal 
sanction. Immediately on his accession to the English Crown he 
procured the passing of the Statute of Stabbing (1 Jac. L c. 8) against 
killing, even on sudden provocation, with daggers : an Act said to have 
been due not merely to the personal aversion of that king to cold steel, 
but also, and chiefly, to the propensities of his Scotch retainers (see 
Foster, Cr. Law, 2nd ed., 297). In 1613 he issued a royal edict (Inner 
Temple Tracts, 11 K. 3) against private combats in the field on challenge, 
whether within or without the realm — and against the combatants, 
their seconds, accomplices, and adherents. This edict, and the Star 
Chamber decree on the subject, Jan. 26, 1614 (Spedding's Bacon, iv. 
409), never had the force of law, but from their issue may be dated 
the continuous and finally successful hostility of the King's Courts (see 
3 Co. Inst. 158; R. v. Tavernier, 1629, 3 Bulst. 172) to all forms of 
duelling, from which it results that though the word " duel " is only 
once named in the statute book, every step towards or during a duel is 
an indictable offence, and a duel is not regarded as an affair of honour, 
but as an unlawful assembly in cold blood for the purpose of assault 
with lethal weapons to avenge some insult or settle some quarrel. 

(a) Sending a challenge to fight a duel is incitement to a breach of 
the peace, or an unlawful assembly (3 Co. Imt. 158 ; 1 Euss. on Crimes, 
6th ed., vol. i. 593 ; R. v. Master, 1848, 5 Cox C. C. 356). Carrying the 
challenge where the messenger is not an innocent agent is the same 
offence (R. v. Morfjcm, 1780, 1 Doug. 314; R. v. Young, 1835, 4 Nev. & 
M. (K. B.) 850). Provoking a man by speech or writing to fight a duel 
(apart from any question of defamation) is an offence of tlie like nature 
(Eot. Pari. (11 Hen. iv.), vol. iii. pp. 630, 632; R. v. Fhilipps, 1805, 6 
East, 464; 5 E. E. 712; and cp. R. v. Adams, 1888, 22 Q. B. 1). 66; 
Steph. JDirj. Cr. Law, 6th ed., p. 54). This was a Star Chamber matter 
(see A.-G. v. Kelly, 1632, Star Ch. Cas. Camden Society Publ., p. 112). 
In the case of the commission of any of these offences the person 
challenged instead of indicting tlie offender may swear the peace on 
him. See Articles of Peace. 

(J) If a duel takes place in a public place it is an Affray (Euss. on 
Crimes, 6th ed., vol. i. 588). 



28 DUFFING 

(c) In the view of some judges a meeting anywhere for a duel is an 
unlawful assembly, and all persons present aiding and abetting, such as 
seconds, etc., are liable as principals, if they are more than mere volun- 
tary or casual spectators (R v. Co7iey, 1882, 8 Q. B. D. 534). 

(d) A duel even in a private place is an assault by each principal on 
the other with lethal weapons, to which the consent of the combatants 
is held to be no defence in law in view of the public interest in the 
matter (B. v. Coneij, 1882, 8 Q. B. D. 534, 549, Stephen, J.; 553, 
Hawkins, J.). 

(c) If one principal is wounded, the other is indictable for unlawful 
wounding, wounding with intent to do grievous bodily harm, or attempt 
to murder (24 & 25 Vict. c. 100, ss. 14, 18, 19, 20 ; Lord Cardigans Case, 
1841, 4 St. Tri. (K S.) 601). In Scotland, the last-named offence is still 
capital (10 Geo. iv. c. 38, s. 2; 50 & 51 Vict. c. 35, s. 56). 

(/) If either combatant is killed, the other is indictable for murder 
or manslaughter, as are the seconds and doctor, according as the fight 
was on a sudden quarrel and immediate duel, or after appointment in 
cold blood (Foster, Cr. Laiv, 2nd ed., 297; B. v. Tavernier, 1617, 3 Bulst. 
171 ; K. V. Oneby, 1795, 2 Stra. 766 ; B. v. Murphy, 1833, 6 Car. & P. 103 ; 
B. V. Yoiciig, 1835, 6 Car. & P. 644; In re Barronet, 1852, 1 El. & Bl. 1 ; 
Kuss. on Crimes, vol. iii. 58). Duels between soldiers on active service 
were capital under the old law of arms (see Segraves Case, Eot. Pari. i. 
172, 181). Persons subject to military law are forbidden by sec. 38 of 
the Army Act, 44 & 45 Vict. c. 58, to fight, promote, be concerned in, 
or connive at a duel, under penalties imposable by court-martial. 

{g) If firearms are used it would seem that the duellists are liable 
to conviction for an offence against sec. 18 of the Offences against the 
Person Act, 1861, 24 & 25 Vict. c. 100. See Euss. on Crimes, iii. 284. 

[Authorities.— I Hale, Hist. PL Cr. 471, 479 ; Hawk., P. C, bk. i. c. 
31, ss. 20-35; Foster, Cr. Law, 2nd ed., 297; Kuss. on Crimes, 6th ed., i. 
588, 593; iii. 57, 284; Arch. Cr. PL, 23rd ed., 15, 789, 1114; Mayne, 
Indian Crim. Law, 1896, pp. 393, 611.] 

Duffing'. — A dishonourable practice which was said formerly to 
prevail in the pawnbroking trade, of rubbing up soiled or damaged goods 
and selling them as new, or re-pledging them with other pawnbrokers. 
To charge a pawnbroker with " duffing " is actionable, whether the words 
be written or spoken {Hickinhotham v. Leach, 1842, 10 Mee. & W. 361). 

Dum casta vixcrit. — See Judicial Separation; Settle- 
ments. 

Dum sc bene gesserit.— See Office. 

Duplicate. — Bill of Exchange. — If a bill has been lost before it 
is overdue, the drawer can be compelled to give a duplicate to the holder 
ui>on an indemnity and security (Bills of Exchange Act, 1882, s. 69, ante, 
\'ol. II. p. 214). As to bills in a set, see ibid., sec. 71, and Vol. II. p. 214. 

Will. — When a will executed in duplicate is proved, only one copy is 
admitted to probate, but both parts must be produced in order that they 
may Ije collated {Killican v. Parker, 1754, 1 Lee, 662). The will is re- 
voked by burning, tearing, etc., either copy animo revocandi (Bougheg v. 
Morton, 1758, 3 Hag. Con. 191ri.). And if one copy was retained by'tho 
testator and cannot be found at his death, the will is presumed to have 



DURHAM, COUNTY PALATINE OF 29 

been so revoked {Jones v. Hcvrdmg, 1887, 58 L. T. 60). Declarations made 
by a testatrix, after the execution of a will, that she had executed it in 
duplicate (where only one will was produced), were held to be inadmis- 
sible as evidence of the execution {Eyre v. Eyre, [1903] P. 137). See 
generally Tristram and Coote's Probate Practice, 14th ed., 1906. 

Duplici'ty. — Under the common-law rules of pleading a count 
or plea was held bad for duplicity when it alleged several distinct 
matters in support of a single cause of action or indictment, or more 
than one distinct action to the claim or charge in the same plea. 
Immaterial averments were rejected, and not regarded as pleading 
double ; nor was mere matter of inducement, nor a multifarious state- 
ment of matters all going to form a single answer, so regarded. Where 
causes of action or indictment could lawfully be joined, they must have 
been stated in distinct counts which operated cumulatively or alterna- 
tively, but alternatives of fact or law could not be stated in the same 
count or plea ; and where more than one ground of defence existed, 
unless by statute the plea of the general issue or not guilty was per- 
mitted, the different defences must be stated in separate pleas which 
operated alternatively. So far as concerns criminal pleadings these 
rules are still theoretically in force. The proper mode of attacking a 
double count or plea was by special demurrer. See Demurrer. 

The whole law on the subject of double pleading in civil cases has. 
now been superseded as to the High Court by the Judicature Acts and 
Rules, and the only remedy now for such pleading is either by summons, 
to strike it out as embarrassing or on taxation of costs, unless a question 
of law arises which is raised by the opposite party on his defence or 
reply (see Stephen, Pleading). 

Duress. — See Coercion; Contract. 

Durham, County Palatine of.— A County Palatine, 

according to Blackstone (Introd. s. 4), is so called a palatio, because the 
owner, in this case the Bishop of Durham, had in it jura regalia as fully 
as the king. As to the origin of the palatine power of the bishops of 
Durham, which is believed to be nearly coeval with the See itself, see 
Sir Thomas Duffus Hardy's Introductions to vols. i. and ii. of the 
Registrum Palatinmn Dunclmense, in the Polls Series ; and for an 
enumeration of the jura regalia, see the Introduction to Williamson's 
Palatine Court of Durham Act, 1889, p. 8. Under the Acts 6 & 7 Will. 
IV. c. 19, and 21 & 22 Yict. c. 45, the palatine jurisdiction is separated 
from the bishopric and vested, with the jura regalia, in the Crown. Of 
the old local judiciary, the Chancery Court of the County Palatine alone 
remains, and has been materially strengthened by the Palatine Court of 
Durham Act, 1889, 52 & 53 Vict. c. 47. This empowers the " Chancellor 
of the County Palatine of Durham and Sadberge," with the concurrence 
of the Lord Chancellor, to adopt and modify any rules or orders of the 
High Court for the purposes of the Court of the County Palatine (s. 1) ; 
gives a right of appeal to the Court of Appeal instead of direct to the 
House of Lords as formerly (s. 11); provides for service of process upon 
persons out of the jurisdiction (s. 2) ; enables an order to be enforced 
out of the jurisdiction by being made an order of the High Court of 
Justice (s. 3); and extends to the Palatine Court certain statutory 
powers of the High Court (ss. 6-10). Cp. Williamson, op. cit. Under 



-0 DUKING 

21 & 22 Vict. c. 45, the foreshore of Durham is vested in the Crown 
(s. 2), but the rents and proceeds therefrom derived are divisible 
etjually between the Crown and the Ecclesiastical Commissioners (s. 4). 
The Durham foreshore is also expressly exempted from the transfer of 
management under 29 & 30 Vict. c. 62, to the Board of Trade, and 
remains under the management of the Commissioners of Woods. 

During*. — A covenant in a marriage settlement that all property 
coming to the wife " during the coverture " shall be settled as therein 
mentioned, is rendered inoperative so long as a decree of judicial separa- 
tion obtained by her is subsisting ; she is therefore absolutely entitled to 
all property coming to her during the subsistence of the decree as if she 
were a feme sole (Daivcs v. Creyke, 1885, 30 Ch. D. 500 ; see also Waite 
v. Morlaiul, 1888, 38 Ch. D. 135, and In re Coward & Adams Purchase, 
1875, L R. 20 Eq. 179, and other cases collected in Stroud's Judicial 
Dictionary, vol. i. p. 584). 

A husband and wife, when before the Divorce Court, agreed in 
writing that if judicial separation were decreed, the wife should be 
entitled to certain furniture " during her life," but that if she annoyed 
her husband her enjoyment of the same was to cease. A decree of 
judicial separation was made, but subsequently the parties resumed 
cohabitation ; it was held that the agreement thereupon came to an end 
{Nicol v. Nicol, 1886, 31 Ch. D. 524). 

A bequest to a married woman living with her husband of a weekly 
sum "during such time as she may live apart from her husband" is 
void, as it is a gift to be made during a period the commencement and 
duration of which are fixed in a way the law does not allow {In re Moore ; 
Trafford v. Maconocliie, 1888, 39 Ch. D. 116). 

A bequest to two or more persons " during their natural lives " is a 
bequest to them or the survivor of them (Alder v. Lawless, 1863, 32 
Beav. 72; 55 E. R. 28; Neighhour v. Thurloiu, 1860, 28 Beav. 33; 54 
E. R. 278). 

A covenant in a lease that the lessee shall quietly enjoy the estate 
" during the term " discharged from tithes is broken by a suit for 
them after the expiration of the term {Lanning v. hovering, 1602, Cro. 
(1) 916). 

" During the said term," see Woodfall, Landlord and Tenant, 17th 
ed., 761 ; Stroud, Judicial Dictionary, sicpra. 

Dust. — See Refuse, Removal of. 

Dwellings, Labourers'.— See Artisans. 

Dying Declarations.— See Declarations of Deceased 
Persons. 

Dynamite.— See Explosives. 



Each. — A gift to "each" of two or more persons, or to each of 
their " resjxKJtive heirs," creates a tenancy in common {Gordon v. Athin- 
son, 1847. 1 De G. & Sm. 478; 68 E. R. 1156; 75 R. R. 171; see 
also JKx parte Tanner, 1855, 24 L. J. Ch. 657 ; Jarman, Wills, 5th ed., 
p. 1122). 



EAEMAEK 31 

As to the word " each " in a contract or bond : Where a debt was 
contracted and a bond made by which A., B., and C. "acknowledge 
themselves bound to the plaintiffs in £1000 each, for which they bind 
themselves and each of them for himself, for the entire sum of £1000," 
the Court held that this was a several bond only {Collins v. Prosser, 1823, 
1 Barn. & Cress. 682 ; 25 E. E. 540). 

Earl IVIarshal. — The Earl Marshal was one of the great 
officers of State under the Norman kings. With the Lord High 
Constable, who was the king's general, he shared the command of, 
and had also the special duty of marshalling, the feudal forces, and 
of ascertaining and enforcing feudal military services. These two 
officers were also the judges in the Court of the Constable and 
Marshal or Court of Chivalry (q.v.). The Earl Marshal was also a 
judge of the Court of the Marshalsea (3 Kerr's Black. Com. p. 42). 

After the forfeiture of the office of constable on the attainder of the 
Duke of Buckingham in 1521 a controversy arose as to whether the 
Court could be held by the Earl Marshal alone ; and it was determined 
in contrary senses on several different occasions during the seventeenth 
century, but has never been settled ; the jurisdiction of the Court 
being so doubtful became obsolete, though it was never formally 
abolished. (See generally as to the Court of Chivalry, Coke, Iiist. 
Part IV. pp. 122-128; Coke on Littleton, Harg. and But., vol. i. 74:h, 
note (1); and Tytler, Military Law, App. IT. pp. 393-399.) 

The King's Bench, during the above-mentioned controversy, decided 
that the Earl Marshal could by himself hold a Court in matters con- 
cerning arms and honour. In this respect, too, however, the jurisdic- 
tion of the Court has become obsolete. The last two or three cases 
were about a hundred and fifty years ago ; and the Court has no means 
of enforcing its decisions upon any of the matters of which it is supposed 
to have cognisance. 

The heralds had always been attendant upon the Court, and they 
remained under its orders, and, after the forfeiture of the office of con- 
stable, under the superintendence of the Earl Marshal In the College 
of Arms are the Earl Marshal's books relating to proceedings in the 
Court, and whatever relates to the office of Earl Marshal and the super- 
intendence of the college. The Earl Marshal has the right of nomination 
of the heralds and others, to their offices in the college, to be granted by 
the sovereign; and under warrant from the sovereign he presides at, 
and performs, the ceremonies on their creation. (See Noble's College of 
Arms, pp. 193, 223-226, 273-295, 301.) 

In 1672 Charles ii. granted the office and dignity to Henry, Lord 
Howard, and to his heirs ; and under this grant the office is now held 
by the Duke of Norfolk. 

[Authoi'ities. — Manual of Military Law, 1899, pp. 9-11; Army; 
Armorial Bearings ; Constable, Lord High ; Court of Marshalsea.] 

Early Closing"-— See Licensing. 

Earmark. — A mark of identity or ownership (Murray's Dic- 
tionary). Money is said " to have no earmark." The maxim means no 
more than that if it be paid for value to one who receives it lionestly 
and without notice that it is not the payor's money, the payee caimot 



32 EAKNEST 

be compelled to refund the amount, although the payor had, in fact, no 
right to the money. 

Lord Mansfield said this is because it passes " as currency " {Millei^ 
V. Race, 1758, 1 Burr., at p. 457). The rule never applied to money 
placed in a bag, or otherwise kept apart {Taylor v. Plumer, 1815, 3 M. 
& S. 575 ; 16 II. K. 367, ^^er Lord Ellenborough), and in modern 
times, at any rate, it has been understood as above stated (see the judg- 
ment of Jessel, M.E., in In re Hallett's Estate, 1879, 13 Ch. D. 696). 

If a current coin be stolen and sold as a curiosity, an order can be 
made under sec. 100 of the Larceny Act, 1861, 24 & 25 Vict. c. 96 for 
its restitution to the true owner. The person who buys such a coin 
does not receive it as current coin {Moss v. Hancock, [1899] 2 Q. B. 
111). 

Money paid to, or received by, an agent or trustee for a specific 
purpose, or fixed with a trust, can be followed in his bankruptcy 
{Harris v. Truman, 1882, 9 Q. B. D. 264; Ex parte Cooke, 1876, 4 Ch. 
I). 123 ; Gilbert v. Gonard, 1884, 54 L. J. Ch. 439), or into the hands of 
anyone, e.g. his banker, who has received it from the agent or trustee 
with notice that it is not the latter's own money {Ex parte Kingston, 
1871, L. R. 6 Ch. 632), even though it has been mixed with other moneys 
{In re Hallett's Estate, supra). 

The proceeds of money wrongfully dealt with by a trustee or agent 
can also be followed, except as against a purchaser for value without 
notice, and the owner of the money has an equitable lien on them for 
tlie amount of the money {Levsis v. Maclocks, 1810, 17 Ves., at p. 57 ; 34 
E. R. 22 ; 7 R. R. 21 ; Hopj)er v. Congers, 1866, L. R. 2 Eq. 549). See 
Lewin on Trusts, 11th ed., pp. 1124-1131. 

Earnest. — A coin or some other thing of value given by a 
buyer to signify the conclusion of a bargain between him and the seller. 
The buyer loses the earnest if he fails to perform his part of the con- 
tract ; and he is entitled to its return if the seller makes default. It is 
necessary that something should actually pass to the seller ; the mere 
passing a coin over the seller's hand is not sufficient {Blenkinsop v. 
Clayton, 1817, 7 Taun. 597; 18 R. R. 602). The giving of earnest by 
the buyer is one of the modes of binding a contract for the sale of goods 
of the value of £10 or upwards, which obviates the necessity of having 
a note or memorandum of the contract in writing (Sale of Goods Act, 
1893, 8. 4). See the history and effect of giving of earnest treated by 
Fry, L.J., in Hoive v. Smith, 1884, 27 Ch. D. 89. 

Earning^S. — This word in sec. 21 of the Divorce and Matrimonial 
Causes Act, 1857, is confined to the lawful earnings of a lawful industry, 
and does not extend to the proceeds of prostitution {Mason v. MitchelL 
1865, 34 L. J. Ex. 68). 

In sec. 3 of the Employers* Liability Act, 1880, the word means 
things like money, food, clothes, and shelter; it does not include the 
value of tuition which an apprentice receives from his employer {Noel v. 
Redruth Foundry Co., 1896, 65 L. J. Q. B. 330). See Stroud, Jud. Diet. 

For the meaning of the word in the Workmen's Compensation Act, 
1906, see Empix)YERS* Liability : Workmen's Compensation. 

Easement. — Easements are a class of legal rights similar in 
many resj.cct.s to the servitudes of the Roman law. They are rights 



EASEMENT - 33 

which the owner of land or buildings has for his own benefit in respect 
of his property, and to be used in connection therewith, in or over the 
property of his neighbour. In an old book, called Termes de la Ley, an 
easement was defined to be "a privilege that one neighbour hath of 
another by writing or prescription, without profit, as a way or sink 
through his land, or such like." But this is obviously insufficient as a 
definition, though it was judicially quoted with approbation by Bailey, 
J., in Heivlins v. Shi'ppam, 1826, 5 Barn. & Cress, p. 229 ; 31 K. E. 757. 
This definition would embrace many rights that are not easements, for 
easements have many essential characteristics not shared by them (see 
the fuller definition by Goddard on Easements, and the explanation of it, 
6th ed., ch. i. p. 2). According to this latter definition (which adopts 
the term used in Termes de la Ley), an easement is a privilege ; that is, 
it is not a right to land or to any corporeal interest in land ; it is a mere 
right of user or enjoyment of some right, in or over another's soil, which 
does not deprive the owner of the possession of his land, though it may, 
and probably does, in some way curtail his rights as owner. Thus a 
right of way does not render the soil any less the property of the land- 
owner, though it will curtail the right he otherwise would have of 
building a wall or digging a pond on the site of the way. [The dominant 
owner has a right of action if his privilege of easement is substantially 
interfered with, but the owner of the servient tenement may exercise 
all rights of property which he has as owner of the soil and which do 
not interfere with the reasonable user of the easement {Clifford v. Hoarey 
1874, L. K. 9 C. P. 362).] The next characteristic of an easement is that 
it is a right ivitliout profit. This distinguishes an easement from a profit 
k prendre, which is a right to enter another person's land and take 
something from it, as fish from a lake, or wood for firing, or stones for 
mending roads, or right of common (see Profits a Prendre). The next 
is that an easement must be possessed in respect of some corporeal heredi- 
tament to which it is appurtenant, that is, it is intended for the beneficial 
enjoyment of the latter, and cannot be severed from it by conveyance, 
will, or otherwise ; and it passes with it to a purchaser or devisee of that 
hereditament [{Rangley v. Midland Ely., 1868, L. E. 3 Ch. 306, 311; 
Simjjsori v. Mayor of Godmanchester, [1897] A. C. 696). It seems that a 
right of way cannot itself support an easement (see Attorney-General v. 
Copeland, [1901] 2 K. B. 101, 106, s.c., reversed on another point, [1902] 
1 K. B. 690 ; Goddard, p. 13).] This hereditament is commonly called 
the " dominant tenement," while the land or building over which the 
easement is exercised is called the " servient tenement." As to the 
latter, it is to be observed that, from the mere nature of the right, it 
must be the property of some person other than the owner of the 
dominant tenement, for any right a man may exercise in his own land 
he exercises as owner of the land — it is one of his proprietary rights, 
and not an easement. Thus if a man possesses two adjoining fields, and 
chooses to make a road over one to the other, the right to use the road 
is the owner's because the soil is his, and he can do what he likes with 
his own ; but in the case of an easement of right of way over another's 
land, he is not the owner of the soil, and can only use his right in the 
manner and to the extent appointed by the owner of the servient tene- 
ment. The owner of the easement is called the " dominant owner," and 
the owner of the servient tenement is called the " servient owner." 
This feature of easements, that is, that there must be a " dominant tene- 
ment" or estate to which the right is attached, and in respect of which 
VOL. V. 3 



34 EASEMENT 

only the right can be used, exchides an important class of rights from 
the law of easements sometimes called rights m gross, that is, rights 
belonging to persons over the lands of others, given to them personally 
and independently of any estate, and public rights. An important 
instance of this class of rights is a right of public way, which is a right 
belonging ecpially to every individual member of the community. And 
us instances of other rights of the same class may be mentioned — rights 
to pitch tents in fairs and markets, public rights of fishing in rivers, and 
private rights granted to individuals by covenant, and not in respect of 
any property. [Cf. also the right which the owners of fishing-boats may 
have to fix moorings in the soil of the foreshore in tidal and navigable 
watei-s {Attoiiuy-General v. Wright, [1897] 2 Q. B. 318).] Another 
characteristic of an easement is that it must exist and be used for the 
beneficial enjoyment of the dominant tenement only. [This does not 
mean that an easement shall cease to exist when from the nature of the 
right its exercise by the dominant owner confers some benefit upon 
others (see per Lord Watson in Simpson v. Mayor of Godmanchester, 
[1907] A. C, at p. 703).] Lord Brougham said, in Keppel v. Bailey, 1834, 
2 Myl. & K. p. 535 ; 39 E. K. 1042; 39 R E. 264), that it would be a 
novel incident attached to land that the owner and occupier should, for 
purposes u'liolly iiiiconnected with that land, and merely because he is 
owner and occupier, have a right of road over other land ; and speaking 
of a right claimed to cut wood, w^ithout any allegation that the wood 
when cut was to be used for the benefit of the dominant tenement, 
Byles. J., said, in Bailey v. Stevens, 1862, 12 C. B. N. S. 91, "How can 
such a right as this be claimed by the occupier of land as such ? It is 
in no way connected with the enjoyment of the land occupied. A man 
might as well try to make a right of way in Kent appurtenant to an 
estate in Northumberland." On this principle it was held that a water- 
works company could not take water from a stream, which they might 
have used lawfully for the benefit of land they owned adjoining the 
stream to supply a town at a distance {Swindon Waterivorhs Co., Limited, 
V. Wilts and Berks Canal Co., 1875, L. R 7 H. L. 697; followed in 
McCartney v. Londotiderry and Lough Swilly Bly. Co., [1904] A. C. 301). 
Another distinctive feature of an easement is that it can only impose 
•an obligation on the servient owner to suffer m" refrain from doing some- 
thing on his own tenement for the advantage of the dominant owner. 
Tlie first remark on this is that an easement is a right by which an 
•obligation is imposed, not on the person of the servient owner, but on 
him with reference to his estate ; and therefore any obligation imposed 
on him personally to do something, for instance, to build or keep in 
repair a wall, or to pump and supply water, is not an easement. On 
this principle it was held that the grantor of a right of way, that is, the 
servient owner, is not bound to repair the way, but that the obligation 
to do that is on the dominant owner {Pomfret v. Bicroft, 1 Wms. Saund. ; 
[Highioay Board of Macclesfield v. Grant, 1881, 51 L. J. Q. B. 357; cp. 
Bmkley v. Biickley, [1898] 2 Q. B. 608 ; Bundle v. Hcarlc, ibid. 83]). The 
obligation on the servient owner is of a negative character only, that 
is. to suffer or refrain from doing something. Tlius, in case of a riglit 
of way, he has to suffer the dominant owner to walk over liis land ; and 
in the case of ancient light, to refrain from obstructing it ; and in the 
case of a right to support, to refrain from destroying the support. It is 
true that a servient owner, wlien granting tlie easement, may bind him- 
self to some active obligation as to repair a way ; but such a duty is not 



EASEMENT 35 

one of the ordinary obligations of an easement, and it is doubtful if it 
would be more than a mere personal obligation, which would not pass 
to a future owner of the servient estate. 

[Easements of Necessity. — Easements of necessity are " easements 
derived by the disposition of the owner of two tenements " {Master v. 
Hansard, 1876, 4 Ch. D. 721). The law implies such easements in 
favour of the land granted over the land reserved by the grantor ; the 
principle being that no man shall derogate from his own grant. The 
most common instance is a way of necessity where one grants a close of 
land to another surrounded Jby the grantor's land {Gayford v. Moffat, 
1868, L. E. 4 Ch. 133). Conversely, where the owner of land grants the 
land surrounding a close but reserves the close {Corporation of London 
V. Biggs, 1880, 13 Ch. D. 708), there will be an easement of necessity in 
favour of the grantor. 

But in the latter of these two cases the expression "easement of neces- 
sity" is confined to an easement without which the property retained 
cannot be used at all, whereas in the former, easements which are necessary 
to the reasonable enjoyment of the property granted are included. 

The law is thus explained by Stirling, L.J., in Union Lighterage Com- 
pany V. London Graving Dock Co., [1902] 2 Ch., at p. 572. Referring to 
the leading case of Wheeldon v. Burrows, 1879, 12 Ch. D. 31, where 
the judgment was delivered by Thesiger, L.J., he says : " In it two rules 
are laid down in the following terms : ' The first of these rules is, that 
on the grant by the owner of a tenement of part of that tenement as it 
is then used and enjoyed, there will pass to the grantor all those con- 
tinuous and apparent easements (by which, of course, I mean quasi-ease- 
ments), or, in other words, all those easements which are necessary to 
the reasonable enjoyment of the property granted, and which have been 
and are, at the time of the grant, used by the owners of the entirety for 
the benefit of the part granted.' The second . . . ' is that, if the grantor 
intends to reserve any right over the tenement granted, it is his duty to 
reserve it expressly in the grant. Those are the general rules governing 
cases of this kind, but the second of these rules is subject to certain 
■exceptions. One of those exceptions is the well-known exception which 
attaches to cases of what are called ways of necessity.' " After review- 
ing various cases, the learned judge said, "These cases" . . . "support 
the proposition that in the case of a grant you may imply a grant 
of such continuous and apparent easements or such easements as are 
necessary to the reasonable enjoyment of the property conveyed, and 
have in fact been enjoyed during the unity of ownership, but that, with 
the exception which I have referred to of easements of necessity, you 
cannot imply a similar reservation in favour of the grantor of land." In 
addition to rights of way, easements of necessity or quasi-easements, 
occur, inter alia, in the case of drains {Byer v. Carter, 1857, 1 H. & N. 
916 ; Hcdl v. Lund, 1863, 1 H. & C. 676), and in the case of light {Allen 
v. Taijlor, 1880, 16 Ch. D. 357 ; Greenlmlgh v. Brindley, [1901] 2 Ch. 
325 ; Bay v. Hazeldine, [1904] 2 Ch. 17).] 

Licences. — The difference between easements and licences in the nature 
of easements should be noticed (see Licence). It is an old principle of law 
that an incorporeal hereditament can only be granted by deed, and 
thus, that a deed is necessary for the creation of an easement [( Wood v. 
Leadhitter, 1845, 3 M. & W. 838 ; 67 11. li. 831).] It is true that ease- 
ments can be, and very frequently are, acquired by prescription, when 
it is practically certain that there never was a deed ; but this is by a 



36 EASEMENT 

fiction of law, by which, after long user, a grant by deed is presumed 
to have been made in ancient times, and that the deed has been long 
since lost or destroyed ; and this presumption is, except under adverse 
circumstances, permitted by the policy of the law, to quiet titles to 
rights which have for many years been enjoyed without dispute, but 
for which no legal origin, except long user, can be shown. If, however, 
a usage in the nature of an easement has been enjoyed for a limited 
time, less than tlie law requires for prescription, with the knowledge 
and assent of a landowner, but without any grant by deed, it is obvious 
that it would be wrong for that usage to be treated as illegal, and the 
person exercising it as a trespasser liable for damages. The law in 
sucli and similar cases would imply that a licence or permission was 
granted, which, though not sufficient to create a permanent right, would 
be a sufficient excuse for the trespass, as it otherwise would have been. 
Without such knowledge and assent, doubtless the usage would con- 
stitute a trespass, for which the trespasser could be sued. In most 
cases a licence is revocable, and in this exists the principal distinction 
between a licence and an easement ; but there are cases in which even 
a licence may become irrevocable, and thus practically an easement is 
acquired without deed, on the ground that revocation would, under the 
circumstances, be inequitable and unjust. 

[Although a mere licence, e.g. to post bills on a wall, is revocable as 
such according to the doctrine of Wood v. Leadhitter, supra, it does not 
follow that there may not exist a right to sue on a contract to allow 
such bills to remain for a definite or a reasonable time {Kerrison v. 
Smith, [1897] 1 Q. B. 445; Wilson v. TavemeT, [1901] 1 Ch. 578). 
In Loive v. Adaiiis, [1901] 2 Ch. 598, it was doubted whether, having 
regard to Walsh v. Lonsdale, 1882, 2 Ch. D. 9, the doctrine of Wood 
v. Leadhitter, sujyra, has survived the Judicature Act.] 

Customary Bights. — Customary rights also require some notice here, 
as, though the law of customs (see Custom) bears upon many subjects 
besides easements, easements and rights similar to easements may be 
claimed by custom. Such claims are an exception to the rule, that a 
deed is necessary for the creation of an incorporeal hereditament. An 
easement is commonly a right belonging to an individual, but it may 
also belong to a number of individuals belonging to a class, as the 
inhabitants of a parish or village. They may have a right, for instance, 
to dip for water at a spring, or to walk along a private road to their 
houses, and these rights, not belonging to the public at large, but being 
enjoyable in respect of their houses only, are easements, and may be 
enjoyable by custom. An instance of this occurs in Carlyon v. Levering,. 
1857, 1 H. & N. 784, where a customary right is alleged that tinners 
and miners within the Stannaries of Cornwall, working mines in the 
Stannaries near streams, should have the privilege of wasMng the tin 
in the streams, and throwing the rubbish into the stream. This right 
was claimed by custom, and, being claimed in respect of the mines, had 
every feature of an easement. [Again, a custom for fishermen in- 
habitants of a parish to dry their nets on the land of a private owner 
situate near the sea in the parish, at all times necessary for their 
Ijusiness, has been held good ; and the use of a modern method of drying 
nets will not take away the privilege, if no unreasonable burden is 
thereby imix)8ed on the landowner {Mercer v. Denne, [1905] 2 Ch. 538).] 
Claims to easements by custom are expressly recognised in the Prescript 
<-" \'-t. 2 & .S Will. IV. c. 71. 



EASEMENT 37 

Natural Bights. — Easements are of two kinds, viz. : easements, 
commonly so called, and "Natural Eights." The main distinction 
between them is in their origin. It has been stated above that, as 
a general rule, all incorporeal hereditaments have their origin in a 
grant, which grant is, however, in many cases only presumed or implied. 
Natural rights, however, stand on a different footing. They are given 
by law to every owner of land, irrespectively of any grant by the 
servient owner, as without them no man would be sure that his land 
would not, at any time, be rendered useless by his neighbour's other- 
wise lawful act. They are given for mutual security, and therefore 
from motives of public policy. They are inherent in land of natural 
right, and are secured by the common law. These rights have reference 
to support for land from adjacent and subjacent soil while in its natural 
state, that is, unbuilt upon and unexcavated, and the due enjoyment of 
air, light, and water by every landowner, which, by provision of nature, 
pass from the land of one person to that of another. (See Air, Light, 
Support, Water, Watercourse, and Waterway). 

Origin of Easements. — Easements, in the limited sense of the word 
— that is, excluding natural rights, which are a legal incident to the 
ownership of land while in its natural condition — can, except in the 
case of wills and customs, only be acquired by grant from the servient 
to the dominant owner. In Rangeley v. The Midland Ely. Co., 1868, 
L. E. 3 Ch. 310, which was a case relating to a right of way, Lord 
Cairns, L.J., said, " I will assume, in the first place, that that is a correct 
expression, and that the object is to create what is properly termed an 
easement over land ; but, assuming that to be so, it appears clear that 
to create an easement over land you must possess the ownership of the 
land. Every easement has its origin in a grant, express or implied. 
The person who can make that grant must be the owner of the land. 
A railway company cannot grant an easement over the land of another 
person," the company having, on stopping up a public way, assumed the 
right to create a new public way in lieu thereof, under their supposed 
parliamentary powers, over land they had not purchased. It is true 
that in the majority of cases no deed or grant can be produced to prove 
title to an easement, and that the only title is long user, that is, pre- 
scription (see Prescription) ; but prescription is a legal fiction by which 
the law, to supply a legal origin for a right that has been exercised for 
a number of years, requires a deed to be presumed to have been 
executed, whereby a grant of the right was lawfully made in ancient 
times, which, in the course of years, has been lost or destroyed, and thus 
prescription is no exception to the rule which requires a deed for the 
acquisition of an incorporeal hereditament. As, however, prescription 
was often defeated by technicalities in evidence, an Act of Parliament 
was passed, commonly called the Prescription Act, to make evidence of 
user under certain conditions for twenty, thirty, or forty years, accord- 
ing to the case, sufficient to raise the necessary presumption of an 
ancient lost grant ; and so the law is now satisfied by shorter user, but 
still the presumption of a grant subsists. Notwithstanding this Act, 
cases occur in which user of an easement may have continued for twenty 
years or more, but the necessary conditions to satisfy the law of pre- 
scription may not exist, or may not be capable of proof. In such cases 
the law provides another fiction, allowing presumption of a modern 
gi-ant which has been lost. This fiction has not escaped judicial 
objection, and reasonably so. For if a right be so claimed, a question 



38 EASEMENT 

arises as to the nature of the presumption, that is, whether it is a 
conclusive presumption of law that a lost deed is to be presumed, or 
whether it is only a presumption of fact for the consideration of the 
jury or Court, and in the latter case whether any discretion is allowable 
as to the presumption or otherwise. In the case of The Duhe of Norfolk 
V. ArhUhnot, 1880, L. li. 5 C. P. D. o9:3, Bramwell, L.J., said, "I decline 
also, to find that there even was a grant which has since been lost, for 
I am sure there never was," and Brett, L.J., in the same case, after 
referring to Angits v. Dalton, 1881, 6 App. Cas. 740, which was then 
before the House of Lords, expressed a similar view. And in another 
case, Harl de la Warr v. Miles, 1881, L. R. 17 Ch. D. p. 590, the same 
learned judge said, " For my part, I have always been of opinion, and, 
until corrected, I must hold to that opinion, that if a judge is asked to 
find the fact of a grant, and to say it has been lost, he must have 
grounds for believing that it was so. I decline to find it here " (cf. 
DaiL^soii V. MVroggan, [1903] 1 Ir. R. 92). 

It would require too much space in a work of this character to 
discuss in detail the extent of, and legitimate mode of, using easements, 
having regard to the rights of other people with which they are often 
antagonistic, and also illegal obstruction of, and interference with, ease- 
ments and the remedies afforded by law for these wrongs, as well as the 
cases in which the Courts will grant injunctions, and when they will award 
damages only. The reader, for such information, is referred to the usual 
text-books, but some notice of the termination of easements is required. 

Termination of Easements. — In the first place, it is to be remarked 
that natural rights, which are not dependent upon a grant, but are, 
by law, an incident to the property in land, can never be totally ex- 
tinguished, but that they may be temporarily suspended — thus, for 
instance, an easement antagonistic to a natural right may be acquired, 
which will operate as a suspension of the natural right while the ease- 
ment lasts, but, if it ceases to exist, the natural right will at once 
revive. An easement, on the other hand, can be either totally ex- 
tinguished or temporarily suspended, and, if once extinguished, it is 
gone for ever, though a similar easement can, of course, be created by 
a fresh grant. Easements can be terminated in various ways, either 
by operation of law or by the act of the dominant owner. There are 
many ways by which an easement may be put an end to by operation 
of the law, as on the completion of the purpose or term of years for 
which it was granted, and a familiar instance of this arises in the case 
of easements of necessity, which terminate by operation of law if the 
necessity comes to an end. Another instance of termination by opera- 
tion of law arises if the dominant owner so alters his tenement, in 
respect of which he is entitled to the easement, that the burden on the 
servient tenement becomes, or would become, seriously increased, or if 
the easement would assume a new character. Thus, where a way was 
granted to a loft, and a space underneath, " now used as a woodhouse," 
and the loft and woodhouse were removed and a cottage built on the site, 
it was held that the easement was lost {Allen v. Gomme, 1840, 11 Ad. & 
E. 758 ; 52 li. K. 492). So where a right of way was gained by pre- 
8crii>tion, Willes, J., said, " I quite agree, also, with the argument that 
the right of way can only be used for the field in its ordinary use as a 
field. The right could not be used for a manufactory built upon the 
field. Tlie use must be the reasonable use for the purposes of the land 
in the condition in which it was while the user took place " ( Williams 



EASEMENT 39 

V. James, 1867, L. E. 2 C. P. p. 582). Unity of seisin of the dominant 
and servient tenements in the same person will also effect the extinction 
of an easement by operation of law. The reason for this is obvious. It 
has been shown that an easement is a right the owner of land has to 
exercise some privilege on the land of another person, or to restrain 
him from doing something on his own land for the benefit of the 
dominant tenement. If the dominant and servient tenements, however, 
have become the property in fee of the same persons, the owner can do 
, what he pleases, and exercise the former easement, not as an easement, 
but simply because the land over which it was exercised is his own. 
It is to be borne in mind, however, that the unity must be a unity of 
seisin in fee, or it may only produce a suspension of the easement while 
the union lasts, and not a total extinction. [Unity of possession under 
a common tenant may, however, operate as an interruption in tlie 
enjoyment of an easement, and so prevent the acquisition of an ease- 
ment both at common law and under the Prescription Act (Goddard, 
p. 264 ; Damper v. Basset, [1901] 2 Ch. 350).] 

Extinction may also be brought about directly by the act of the 
dominant owner, that is, by release or by abandonment from which a 
release is to be implied. As easements must be created by grant, so by 
a regrant or release they can be reconveyed to the servient owner and 
abolished. Actual regrants or releases are not often met with, but it is 
not uncommon to meet with circumstances from which a release can be 
implied. As a grant is to be implied from suffering user of a privilege 
for a number of years, so a release may be presumed from a lengthened 
period of non-user. Non-user, however, has to be taken into considera- 
tion with all the surrounding circumstances to have this effect, and the 
surrounding circumstances may be used to explain away the implication 
of abandonment. If a building with ancient lights be pulled down, this 
does not necessarily operate as abandonment of the easement, for it may 
be the evident intention of the owner to erect a new building with 
similar lights on the same site ; but where such a building was pulled 
down and another erected without windows, which remained for seven- 
teen years, it was held that the right was lost by abandonment {Moore 
V. Raivson, 1824, 3 Barn. & Cress. 332 ; 27 R. R. 375; cf. Midland Ely. 
v. GrihUe, [1895] 2 Ch. 827). 

As a grant cannot be presumed unless the user of the easement has 
continued for twenty years, it has been thought that a release cannot 
be presumed unless non-user has continued for a like period ; but this 
is not so, and it was held that cesser of user, coupled with any act clearly 
indicative of an intention to abandon, would have the effect of raising 
an implication of a release quite irrespectively of time, and that it is not 
so much the duration of the non-user as the nature of the act done that 
determines the question. The period of time is only material as one 
element in the evidence {B. v. Chorley, 1849, 12 Q. B. p. 519; 76 R. R. 
330 ; Crossley v. Lightoiulcr, 1867, L. li. 2 Ch. 478). ^ 

Lastly, it may be stated as a general rule that any right, whether a 
natural right or an easement, if only suspended, will revive when the 
cause of the suspension is removed, but that, if an easement is extin- 
guished entirely, it will not in any case revive, though a similar right 
may be granted or acquired by prescription under the Prescription Act, 
or under the doctrine of lost grant. 

[See Gale on Easements, 7th ed. ; Goddard on Easements, 6th ed. ; 
Innes on Easements, 1903.] 



40 



EASEMENT 



FORM OF AGREEMENT to Prevent Acquisition of 
Easement. 



Recitals. 

Thai pipes 
have been 
laid down. 



Consent of 
A. to grant 
riphl of 
taking 
Avater. 



Witnesseth. 

Grant. 

I>iberties. 



Revocable Grant and Agreement respecting the Supply of Water to 
a House from an adjoining Estate} 

Parties, A, 1 ; B., 2 ; Recite titles of A. to the X. estate, and of 
B. to Y. House adjoining that estate ; And whereas the said B. some 
time since, with the consent of the said A., laid down pipes from the 
said X. estate to Y. House aforesaid, for the purpose of conveying 
water from the said estate to the said house for domestic and garden 
purposes ; And whereas the said A. is willing to grant the right 
to take and convey water in manner and for the purposes aforesaid 
to the said B., his heirs and assigns, the owner or owners for the 
time being of Y. House, upon condition that such privilege shall 
not be used to the prejudice of the owners of the X. estate, and 
shall be revocable at pleasure, as hereinafter mentioned, and shall 
be subject to such other restrictions and stipulations as are herein- 
after expressed : NOW THIS INDENTURE WITNESSETH 
that in consideration of the premises, and for the other considera- 
tions hereinafter appearing, the said A. doth hereby grant unto 
the said B., his heirs and assigns, the owner or owners from time 
to time of Y. House aforesaid, full and free liberty and licence 
at all times hereafter, until such liberty and licence shall be revoked 
under the provision in that behalf hereinafter contained, to take 
and convey water by means of any pipes and tanks already laid 
down, or to be hereafter laid down for such pnrpose, from the said 
X. estate for the use of Y. House aforesaid, and the gardens and 
grounds belonging thereto, in as full and ample a manner as hereto- 
fore, together also with full liberty and licence for the person or 
persons aforesaid, or any person or persons authorised by him or 
them, with workmen and others, from time to time hereafter, until 
such liberty and licence shall be revoked to enter on the said X. 
estate, or any part thereof, and to dig, search for, and examine the 
said pipes and tanks, and to execute, eifect, and do all necessary 
cleansings and repairs thereto, or renewals thereof, when and as often 
as occasion shall be or require, giving nevertheless to the said A, 
his heirs or assigns, or other the owner or owners for the time being 
of the said X. estate, and to his or their tenants for the time being, 
reasonable notice, previous to such entry, of the object and purpose 
of the same, and making to the said A., his heirs or assigns, and to 
such owner or owners and tenants, full compensation for all damage 
which may be done to his or their land, or the timber, trees, wood, 
or underwood, or growing crops thereon, by reason of the exercise 
of any of the liberties and licences hereinbefore contained : And 
yielding and paying unto the said A., his heirs or assigns, or the 
owner or owners from time to time of the said X. estate, the yearly 
payment of twenty shillings for or in respect of the liberties, 

* This grant is intended to prevent a legal ejisemeiit l)y user from being accpiired 
(see 2 (Sb 3 Wni. iv. c. 71, s. 2), and may be adapted to other kinds of easement. 



T?cdden- 
dum. 



EAST INDIA STOCK 41 

licences, and privileges hereby granted during the continuance 

thereof, the payment of such yearly sum to be made on the 

day of in every year, without any deduction : 

Provisoes. PROVIDED ALWAYS, that the liberties and licences hereby granted 
shall not be used to the prejudice, injury, or inconvenience of 
the owner or owners of the said X. estate, or his or their tenants ; 
And that nothing herein contained shall prevent the said A., his 
heirs and assigns, or the owner or owners or tenants from time 
to time of the said X. estate, or any part thereof, from diverting, 
diminishing, interfering with, or cutting off the water by which the 
said tanks and pipes are or may for the time being be supplied and 
so that in such event the owner or owners of Y. House aforesaid 
shall not be entitled to any compensation for the damage occasioned 

Power of by the diminution or stoppage of such supply of water: Provided 

ALSO AND It is HEREBY AGREED AND DECLARED that the said A., 

his heirs or assigns, or the owner or owners for the time being of 
the said X. estate, shall have full power and authority at any time 
hereafter by giving three calendar months' notice in writing to the 
said B., his heirs or assigns, the owner or owners for the time being 
of Y. House aforesaid, or leaving such notice at Y. House, to revoke 
and make void the liberties, licences, and powers hereby granted, 
in which case the said pipes and tanks shall be removed and the 
surface soil restored by the said last-mentioned persons or person on 
reasonable notice in that behalf being given to him or them, or in 
default thereof such pipes and tanks shall become the property of 
the owner or owners for the time being of the said X. estate. In 
witness, &c. 

Far other Forms, see separate titles, e.g. CONVEYANCE, Lease, Will, 
&c., and Index to Forms. 



revocation. 



East India Company. — See British India; Companies, 
Chartered; and 60 Vict. c. 10. 

East India Stock. — This was an authorised trust investment 
under Lord St. Leonard's Act. It included stock charged on the revenues 
of India, and created under or by virtue of any Act of Parliament passed 
on or after August 13, 1859 (30 & 31 Vict. c. 132, s. 1 ; but see also 
52 & 53 Vict. c. 32, ss. 1 {d), 8, and 56 & 57 Vict. c. 53, sched.), and also 
the capital stocks created under the subsequent East India Loan Acts, 
32 & 33 Vict. c. 106, s. 16, to 48 & 49 Vict. c. 28, s. 14; see Lewin on 
Trusts, 11th ed., 1904, pp. 351 et seq. The old East India Stocks have 
(substantially) been all converted into India Stock (India Stock Act, 
1887, 50 & 51 Vict. c. 11 ; East India Stock, as such, is not now quoted 
in the Stock Exchange Year Book, q.v. sub tit. India for the details of the 
various Indian stocks). 

India 3 J per cents, and 3 per cents, are authorised investments under 
the Trustee Act, 1893, as is also any other capital stock which may at 
any time thereafter be issued by the Secretary of State for India under 
the authority of Act of Parliament, and charged on the revenues of India 



42 EASTER 

(s. 1). But Indian Railway Stock charged on the revenues of India does 
not come within the meaning of 30 & 31 Vict. c. 132, s. 1 (Gh^een v. Aiif/ell, 
1867, W. N. 305). 

Easter. — The Festival of the Resurrection of our Lord, which 
has been observed since apostolic times. The rule of the English, as of 
the whole Western, Church, is that the festival shall be kept on the first 
Sunday after the full moon which happens upon or next after the 21st 
of March, and if the full moon happens on a Sunday, Easter Day is the 
Sunday after. On the adoption of the Gregorian calendar in 1752, the 
system of calculating the full moon was altered (see 24 Geo. ii. c. 23). 
Easter Day is appointed in the Book of Common Prayer to be observed 
by proper Psalms, Lessons, Collect, Epistle, Gospel, and Preface, and the 
recitation of tlie Athanasian Creed ; and it is also one of the three 
occasions in the year on which every parishioner is directed to receive 
the Holy Comnnmion. The Monday and Tuesday following are also 
directed to be observed as holy days. By the Bank Holidays Act, 1871, 
34 & 35 Vict. c. 17, Easter Monday is one of the days directed to be 
kept as close holidays, and no person is compellable to make any pay- 
ment or do any act on it which he would not be compellable to make 
or do on Christmas Day or Good Friday (q.v.). See also Business Day. 
Customary sums are payable at Easter to the incumbent (or perpetual 
curate, see 6 & 7 Vict. c. 37, s. 15) by every parishioner, and have been 
declared to be due of common right, at the rate of 2d. a head for every 
member of the family aged sixteen and upwards, unless it had been 
customary to pay more (Lawrence v.' Jones, 1724, 1 E. & Y. 801 ; Carthew 
V. Edwards, 1749, ihid. 826 ; Amb. 72 ; 27 E. R. 43). Their payment is 
also directed by a rubric at the end of the communion office, and by 

2 & 3 Edw. VI. c. 13, s. 10 (1549), Easter being one of the four customary 
offering days; but this last enactment has been repealed by 50 & 51 
Vict. c. 59 (1887), except as to offerings and dues which have not been 
commuted or are still payable. Such commutation is permitted by 2 & 

3 Vict. c. 62, s. 9 (1839), and in the absence of a parochial agreement 
the provisions of the Tithe Commutation Act, 6 & 7 Will. iv. c. 71 
(1837), do not apply to Easter offerings (see s. 90). See also Tithes. 
Freewill Easter offerings to a clergyman have been held not to be 
assessable to income-tax {Cooper v. Makiston, 1906, 76 L. J. K. B. 243). 
Canon 90 of 1603 appoints Easter week for the election of church- 
wardens (q.v.) or questmen, and sidesmen or assistants. 

Eavesdropping". — A form of public nuisance said to have 
been punishable at common law, and thus defined : — " Eavesdroppers be 
such as listen (? by night), under walls or windows or the eaves of a 
house, to hearken after discourse, and therefore to frame slanderous 
and mischievous tales." They are to some extent mixed up with Night- 
Walkeus (4 Black. Com. 168 ; Burn, Justice, 30th ed., tit. Eavesdropping ; 
Dalton, Coventry Justice, c. 66). The offence was presentable but not 
tria])le at a Court L-eet, and indictable at the sheriffs tourn (courts both 
now abolislied) or at Quarter Sessions, and punishable by fine, and finding 
sureties for good behaviour. Hawk. {PL C, bk. i. c. 61, s. 4) suggests 
that a justice could bind an eavesdropper over to good behaviour. There 
is no modern instance of a prosecution or precedent of an indictment 
for this offence, but see 5 Sold. Soc. Pub. 70, for a presentment in 1390 
in tlie Court Leet of Norwich of a chaplain for eavesdropping by night. 



ECCLESIASTICAL COMMISSIONEES 43 

Ecclesiastical Commissioners. 

TABLE OF CONTENTS. 



Cliui-cli Building Acts . . .43 

Consolidated Cliapelries . . 48 

District Cliapelries ... 48 
Ecclesiastical Commissioners, Powers 

of 53 

Ecclesiastical Leases, etc. . . 51 

New Parishes .... 47 



Particular Districts ... 49 

Private Patronage Acts . . 46 

School Sites 45 

Separate Districts for Spiritual 

Purposes . . ... .50 

Societies under the Companies 

Acts 45 



The important powers originally conferred on the Church Building 
Commissioners have since 1857 been vested in the Ecclesiastical Com- 
missioners, and as the Acts relating to the Church Building Com- 
missioners commence in 1818, and therefore before the establishment 
of the Ecclesiastical Commissioners (in 1836), it is considered convenient 
to take first the Acts relating to church building, and also to notice 
the difficulties incident to conveyances of land for ecclesiastical charit- 
able purposes, which, so far as regards sites for churches, are removed 
by the statutes. 

Church Building Acts. — These Acts, and the law as to church building 
and division of parishes, are fully discussed in Phillimore's Ecclesiasticcd 
Laiv, 2nd ed., by Sir Walter Phillimore, of which, by his permission, use 
is made in this article (see Phillimore, Eccl. Lain, vol. ii., under the general 
head of Church Extension, and particularly chaps. 4 and 5, pp. 1703 to 
1738, on the Building of Churches and Division of Parishes, and chaps. 
3 and 4, pp. 1658 to 1702, on the Ecclesiastical Commissioners and (1672) 
Augmentations of Benefices). 

In considering the statutes it is necessary to bear in mind the legal 
difficulties that they are framed to meet, including those which apply to 
conveyances of land for charitable purposes. 

(1.) It is an established principle of ecclesiastical law that the cure of 
souls in a parish is vested in the incumbent, and that, as stated by Cole- 
ridge, C.J., in Wood v. Buried Board of Hcadingly, [1892] 1 Q. B., at p. 
729, " No clergyman can perform sacred rites in the parish of anotlier 
clergyman without the consent of the incumbent — to do so would be 
an ecclesiastical offence " (see Phillimore, Eccl. Law, 906). 

(2.) Apart from statutory provisions, the grant inter vivos, or gift by 
will of a site for a church, or of money to purchase a site and build 
a church on any land not already in mortmain (distinguished in the 
cases from a gift to build a church when a site is obtained) would, before 
the Mortmain and Charitable Uses Act, 1888, 51 & 52 Vict. c. 42, have 
been void under 9 Geo. ii. c. 36, and between that Act of 1888 and the 
Mortmain and Charitable Uses Act, 1891, 54 & 55 Vict. c. 73, would have 
been void, unless in accordance with the provisions of the Act of 1888. 
The said Act of 1891 restricted the meaning of land as used in 9 Geo. ii. 
c. 36, excluded from the prohibitory clauses many interests in land, and 
sanctioned its being left to a cliarity, but provided that in such case it 
must be sold, so that though the present general law is more liberal to 
charities than before, it does not, apart from the Church Building Acts, 
facilitate the acquiring of sites for churches. 

(3.) The vesting a site in any corporation not empowered by law to 
hold land would, without licence from the Crown under the old Mortmain 
Laws, have rendered it liable to forfeiture to the Crown, a liability which 
is expressly preserved by the Mortmain and Charitable Uses Act, 1888. 



44 ECCLESIASTICAL COMMISSIONERS 

(4.) Though it is frequently convenient and desired to vest the site 
for a new church or any building for church or parish purposes in the 
vicar or rector in his corporate capacity, yet, even if licence from the 
Crown were obtained, it is very doubtful if this could legally be done 
apart from the Church Building Acts. On this difficulty, as applying 
to mission buildings that do not come within the Church Building 
Acts, Messrs. Crawley, Arnold & Co., solicitors to the Church Building 
Corporation, in 1892 took the opinion of Sir R Webster, Mr. Dibdin, 
Mr. Wolstenholme, and Mr. (now Sir) Howard Elphinstone, and those 
eminent counsel were equally divided on this question, whether, even 
if licence to hold in mortmain were obtained, a conveyance could legally 
be made to a rector or vicar or other corporation sole in his corporate 
character. The usual plan in the case is to take a conveyance for 
ecclesiastical charities, not coming within the Church Building Acts, or 
any special statutes, to trustees by deed enrolled, subject to the objection 
that if the conveyance be by gift and not for value, it is liable to be 
defeated by the death of the grantor within twelve months. 

It is convenient to notice here that an ecclesiastical charity, as 
defined by sec. 75 of the Parish Councils Act, 56 & 57 Vict. c. 73, is 
excluded from the powers of the parish council. 

Before considering what are usually known as the Church Building 
Acts, there are some important statutes to be mentioned. 

The 43 Geo. iii. c. 108 (as to which, see article Charities, Vol. 11. 
p. 670) to a limited extent removed difficulty No. (2), supra (see on this 
Act, Phillimore, Ecd. Lata, 2nd ed., p. 1678; Fisher v. Brierley, 1860, 
29 L. J. Ch. 477; Theobald on Wills, 1905 ed., pp. 349 et seq., and cases 
there cited; In re Smitlis Estate ; Clements v. Ward, 1887, 35 Ch. D. 
589; GBrien v. Tyssen, 1884, 28 Ch. D. 372; Dixon v. Butler, 1839, 
3 Y. & C. Ex. 677 ; 51 R. R 435 ; Gircllestone v. Creed, 1853, 10 Hare, 480 ; 
68 E. E. 1016 ; Incorporated Chnrch BnildAnq Society v. Coles, 1855, 1 Kay 

6 J. 145; 69 E. R. 405; 5 De G., M. & G. 324; 43 E. R 895; In re 
Vaughan ; Vaughan v. Thomas, 1886, 33 Ch. D. 187; In re Hendry ; 
Watson V. Blakeney, 1887, 56 L. T. 908 ; Sinnett v. Herlert, 1872, L. R. 

7 Ch. 232; Cham^mey v. Davij, 1879, 11 Ch. D. 949). Under this Act 
the concurrence of the Ordinary was necessary for carrying out direc- 
tions of the testator or in other cases of the patron and incumbent 
also. 

By 51 Geo. in. c. 115, further power was given to owners of manors 
to grant five acres of land for like purposes free from rights of common 
(see on this Act, Forbes v. Ecclesiastical Commissioners, 1872, L. R. 15 Eq. 
51; riiillimore, Eccl. Law, 1679; see also Champney v. Davy, 1879, 11 
Ch. D. 952). 

Tlie Places of Worship Sites Act, 1873, 36 & 37 Vict. c. 50 (Philli- 
more, Eccl. Law, 1698), empowered absolute or limited owners and persons 
under disability to grant an acre for a site for any church, chapel, or 
place of divine worship. The Act was extended by 45 & 46 Vict. c. 21, 
8. 1, giving like powers to ecclesiastical and lay corporations (see Philli- 
more, Eccl, Law, pp. 1701, 1702). These two Acts did not require the 
concurrence of the Ordinary, nor did they make the grant void if the 
grantor died within a specified time after the grant ; but they contain 
no provisions for grant to any corporation, except to the Ecclesiastical 
Commissioners, and provide for determining the estate granted if the 
land should at any time be used for any purpose other than that of a 
site for a place of worship. 



ECCLESIASTICAL COMMISSIONEES 45 

School Sites Acts. — The series of statutes commonly known as The 
School Sites Acts (see in particular The School Sites Act, 1841, 4 & 5 
Vict. c. 38 ; 7 & 8 Vict. c. 37, 1844 ; 12 & 13 Vict. c. 49, 1849 ; 13 & 14 
Vict. c. 28, 1850; 14 & 15 Vict. c. 29, 1851 ; 15 & 16 Vict. c. 49, 1852) 
contain provisions enabling tenants for life and persons under disability 
to convey and permit conveyances to corporations, sole or aggregate (see 
4 & 5 Vict. c. 38, s. 7 ; see for a case of a conveyance to an incumbent 
and an archdeacon, Hornsey District Council v. Smith, [1896] 2 Ch. 254), 
and to the minister and churchwardens, and provide in effect that they 
shall be a corporation so far as regards succession for the purpose ; but 
these Acts contain provisions for determining the estate in case the 
property is used for other purposes than those specified in the Acts, and 
require enrolment of deeds. See also the list of exempt charities given 
in Vol. 11. pp. 674 ct seq. 

Under the Companies Acts. — Several diocesan societies have been 
formed and incorporated under the Companies Acts, 1862 and 1867, for 
ecclesiastical purposes in the diocese, with the omission of the word 
" limited " from the name, by licence of the Board of Trade under sec. 
23 of the Companies Act, 1867. The Companies Act, 1867, empowers 
companies formed under it to hold land without licence in mortmain ; 
but as these societies are not " for gain," they come within sec. 21 of 
the Act of 1862, and cannot hold more than two acres without the 
licence of the Board of Trade. 

CharitaUe Trustees Incorporation Act, 1872, 35 & 36 Vict. c. 24. — 
This empowers the corporation by certificate of the Charity Commis- 
sioners of trustees for religious or charitable purposes, but it is believed 
that in practice little use is made of the Act. 

A note on church building would be incomplete without reference to 
the Incorporated Society for Promoting the Enlargement, Building, and 
liepairing of Churches and Chapels, which has its offices in Dean's Yard, 
AVestminster. It was incorporated by 9 Geo. iv. c. 42. As appears from 
the case of the Incorporated Church Building Society v. Barlow, 1853, 
3 De G., M. & G. p. 120 ; 43 E. R. 48 (see also Incorporated Church 
Buildincj Society v. Coles, 1855, 1 Kay & J. 145 ; 69 E. R. 405 ; 5 De G., 
M. & G. 324 ; 43 E. E. 895), the society has no power to purchase land, 
but only to build churches or chapels on land already purchased, and 
therefore could take a bequest by will of pure personalty without being 
obnoxious to 9 Geo. ii. c. 36 (see Phill. Ecclesiastical Law, p. 1741). The 
society can only employ its general funds on consecrated buildings, but 
it acts as a trustee and accepts gifts of special trusts for any parish 
buildings, and holds a considerable sum of money on trust for repair 
of churches. These trust funds for repairs of churches are of great 
value since the Compulsory Church Rates Abolition Act of 1868, 
31 & 32 Vict. c. 109. 

The Church Building Acts p)roper. — The set of statutes usually known 
as the Church Building Acts commence with the Act 58 Geo. ill. c. 45, 
1818, by which Church Building Commissioners were appointed to 
examine into parishes and expend in building churches a sum of 
£1,000,000 granted by Parliament. This Act was amended and extended 
by 59 Geo. iii. c. 134, by which the Commissioners were incorporated, 
and by 3 Geo. iv. c. 72, and by 5 Geo. iv. c. 103, 1824, a further sum of 
£500,000 was granted for the purpose. These sums have long since 
been expended. The Acts also provided for the division of parishes and 
for endowment by means of pew rents. 



46 ECCLESIASTICAL COMMISSIONEKS 

The statutes were amended and extended by a great number of 
statutes. The following is a list given in New Parishes Acts and Church 
Building Amendment Act of 1884, as what together with that Act may 
be cited as the Church Building Acts : — 

58 Geo. III. c. 45, 1818; 59 Geo. iii. c. 134, 1819; 3 Geo. iv. c. 72, 
1822 ; '5 Geo. iv. c. 103, 1824 ; 7 & 8 Geo. iv. c. 72, 1827 ; 1 & 2 Will. iv. 
c. 38, 1831 ; 2 & 3 WHl. iv. c. 61, 1832 ; 1 & 2 Vict. c. 107, 1838 ; 2 & 3 
Vict. c. 49, 1839 ; 3 & 4 Vict. c. 60, 1840 ; 7 & 8 Vict. c. 56, 1844 ; 8 & 9 
Vict. c. 70, 1845; 9 & 10 Vict. c. 68, 1846; 11 & 12 Vict. c. 37, 1848; 
14 & 15 Vict. c. 97, 1851 ; 17 & 18 Vict. c. 32, 1854 ; 19 & 20 Vict. c. 55, 
1856; 32 & 33 Vict. c. 94, 1869; of which 58 Geo. iii. c. 45, and 59 
Geo. III. 0. 134, may be treated as the principal Acts, and the others as 
amending Acts. 

To this list may be added the following, as material to the powers of 
the Ecclesiastical Commissioners : — 

Principal Ads. Amending Acts. 

rl &2 Vict. c. 107. 



1 & 2 Will. IV. c. 38, Private 
Patronage Act. 



3 & 4 Vict. c. 60. 
7 & 8 Vict. c. 56. 
11 & 12 Vict. c. 37. 
114 & 15 Vict. c. 97. 



Q &7 Vict. c. 37, New Parishes or /7 & 8 Vict. c. 94. 

Peel Acts. (19 & 20 Vict. c. 104. 

19 & 20 Vict. c. 55, substitutes the Ecclesiastical Commissioners for the 
Church Building Commissioners from 1st January 1857. 

19 & 20 Vict. c. 104, amending the New Parishes Acts and containing 
provisions apphcable to districts formed under all the Acts. 

The Church Building Acts proper contain many provisions enabling 
the Church Building Commissioners to accept buildings or sites for 
churches (see 58 Geo. ill. c. 45, s. 33), for corporations and limited owners 
to convey sites for the purpose (s. 34), powers to compel the procuring 
of sites by parishes (s. 35), empowering limited owners to sell sites 
{ss. 36, 38, 39), and powers for compulsory purchase, somewhat analogous 
to those in the Lands Clauses Acts (see ss. 41 to 51). 

These powers were extended by other Acts, particularly 3 Geo. iv. 
c. 72, ss. 1-4, 8, 29, and 32, and as to the vesting the sites in the persons 
or corporations specified (5 Geo. iv. c. 103, s. 14); see also vesting the 
freehold in the incumbent (8 & 9 Vict. c. 70, s. 12, and 19 & 20 Vict. 
c. 104, 8. 10), and as to selling the sites of churches pulled down (18 & 
19 Vict. c. 127, 8. 14). There were provisions also for the repair of 
churches, many of which, as depending on church rates, are now obsolete ; 
but there are special provisions for repair -funds, where private indi- 
viduals were empowered to build churches or chapels (see 1 & 2 Will. iv. 
c. 38, 8. 2; 14 & 15 Vict. c. 97, s. 7, which Act also exempted from the 
Mortmain Acts all endowments for repair funds (see s. 8)). 

Private Patro7iage Acta. — In 1824 a new principle was introduced by 
5 Geo. IV. c. 103, enabling private persons, with the approval of the 
bishop, to build churches or chapels, and for vesting (see s. 14) the free- 
hold of the site in the persons named in the sentence of consecration, 
and (s. 15) for the trustees to sell vaults and burying-places, and provide 
for maintenance by pew rents, and for the Churcli Building Commis- 



ECCLESIASTICAL COMMISSIONERS 47 

sioners to make any church so built into a district church or chapel 
under their Acts, and sec. 18 applied many of their powers. These were 
amended by 7 & 8 Geo. iv. c. 72, s. 3, providing that the Commissioners 
might direct how any endowment provided should be settled and assured. 
It contained also a provision as to the right of patronage, which has been 
repealed and altered by the Act next cited. 

These Acts were amended by 1 & 2 Will. iv. c. 38, containing express 
provisions as to the patronage where an endowment of £1000 (37 & 38 
Vict. c. 96) was provided ; and by sec. 7 notice was to be given to the 
patron or incumbent, and if the patron chose to build and endow, he was 
to be preferred. Further provisions on this subject are contained in 3 & 4 
Vict. c. 60; 14 & 15 Vict. c. 97. 

New Parishes Aets and Ecclesiastical Commissioners Poioers. — Meantime 
the Ecclesiastical Commissioners had been established by 6 & 7 Will. iv. 
c. 77, 1836. Their constitution was modified by 3 & 4 Vict. c. 113. The 
special function of the Ecclesiastical Commissioners was to administer 
episcopal and capitular revenues, and make better provision for cure of 
souls in parishes where such assistance was required (see Phillimore, 
Eccl. Law, p. 1867); but by the New Parishes Acts, 1843 and 1844, 
powers were granted to the Ecclesiastical Commissioners which were 
cognate to those vested in the Church Building Commissioners. Thus 
by the New Parishes Act of 1843, 6 & 7 Vict. c. 37, ss. 9 and 22, also 
commonly known as Peel's Act, amended and extended by 7 & 8 Vict, 
c. 94, the Ecclesiastical Commissioners were empowered to borrow 
£600,000 from Queen Anne's Bounty, and to take gifts of land or money 
by deed or will for providing for the endowment of any minister of any 
district created under the Acts or providing a church or chapel. See as 
to this Act, Baldwin v. Baldivin, 1856, 22 Beav. 419; 52 E. R. 1170. 
These Acts were explained and extended by 19 & 20 Vict. c. 104, 
commonly called Lord Blandford's Act (see Blandford (Lohd's) Act), 
and 47 & 48 Vict. c. 65, 1884. 

Sec. 29 of 3 Geo. iv. c. 72, provided that after five years from the 
date of the conveyance of the site of a church, the property should be 
free from all claims; but it has been held that this clause must be 
strictly construed. In A.-G. v. Bishop of Manchester, 1867, L. K. 3 Eq. 
436, it was held that it did not apply or make valid the conveyance by 
a trustee of a chapel already erected subject to special trusts, and the 
conveyance was set aside, although it had been made more than five 
years before the action, and the chapel had been actually consecrated as 
a parish church. 

It will be seen that until 1857 the Church Building Commissioners 
under the " Church Building Acts " and Ecclesiastical Commissioners 
under what are called the " New Parishes Acts, 1843 and 1844," had 
distinct powers applying to the building of churches and the division of 
parishes ; and there were also in existence, under the Private Patronage 
Acts, the separate statutory powers enabling private persons to build 
churches and chapels, and the Church Building Commissioners to assign 
districts to them. 

In 1856 these statutory powers were, to some extent, brought 
together by the Act 19 & 20 Vict. c. 55, by which Act the powers of 
the Church Building Commissioners were, as from January 1857, vested 
in the Ecclesiastical Commissioners. Lord Blandford's Act was passed 
in the same year. These Acts were in 1869 amended by 32 & 33 Vict, 
c. 94, containing among other enactments provisions to facilitate the 



48 ECCLESIASTICAL COMMISSIONEKS 

surrender to the Ecclesiastical Commissioners of separate trusts of 
vaults or pew rents created under the Public Patronage Acts. 

The last Act to be noticed is 47 & 48 Vict. c. 65 (August 14, 1884), 
amending the New Parishes Acts (or Peel Acts), 6 & 7 Vict. c. 37 ; 7 & 8 
Vict. 0. 94; and 19 & 20 Vict. c. 104, empowering the Ecclesiastical 
Commissioners, with the consent of the bishop, to submit to His Majesty 
in Council any scheme for dissolving a district formed under those Acts, 
for extending the powers for alteration of boundaries, and also amend- 
ing the Church Building Acts, by providing that where under sec. 18 
of the Act 1 & 2 Vict. c. 107, provision has been made for maintenance 
of the clergyman out of pew rents, the Ecclesiastical Commissioners, 
with the consent of the bishop, patron, and incumbent, to revoke and 
alter the provision. See Vicar, etc., of St. Saviour, Westgate-on-Sea, v. 
Parishioners of the Same, [1898] P. 217. This Act specifies what may 
be cited as Church Building Acts. 

In addition to the provisions (1) for {a) separate districts for 
" spiritual " purposes, and {h) new parishes under the New Parishes Acts ; 
(2) for particular districts under the Private Patronage Acts, the old 
Church Building Acts provide for the creation of five different divisions 
or districts: — District chapelries, consolidated chapelries, distinct parishes, 
district parishes, and chapels without districts. 

It does not appear that the statutory provisions for making any of 
these divisions are repealed, but according to modern practice the only 
districts that are now formed are the following: — Under the Church 
Building Acts — (1) district chapelries; (2) consolidated chapelries. 
Under the Private Patronage Acts — (3) particular districts. Under the 
New Parishes Act — (4) constitution of separate districts for spiritual 
purposes ; (5) new parishes. 

(1.) District Chapelries. 

(2.) Consolidated Chapelries. 

These are formed under the Church Building Acts. 

The Ecclesiastical Commissioners may recommend to His Majesty 
in Council the formation of a separate district containing within its 
limits a consecrated church, to which church in fact the district is 
assigned. But such a recommendation must always have the concur- 
rence of the bishop; and if the district is to come out of more than 
one cure it must also have the concurrence of the patrons of the cures 
affected. If the district is taken out of one cure only, it is termed a 
" District Chapelry," if out of more than one a " Consolidated Chapelry." 

District Chapelry. — The constitution of the district chapelry is 
effected by an Order of the King in Council, by which it is recited 
that the Ecclesiastical Commissioners have, in pursuance of the Act 
59 Geo. III. c. 134; 2 & 3 Vict. c. 49 ; 19 & 20 Vict. c. 55, laid before 
His Majesty a representation that a district chapelry should, be assigned 
to a church named with the consent of the bishop, and a further repre- 
sentation that it was expedient that banns of matrimony should be 
puljlished, and marriages, baptisms, churchings, and burials should be 
solemnised in the church, and that the fees should belong to the minister 
thereof, witli a proviso, if so arranged, that during the existing incum- 
bency of the mother parish the fees shall be paid over to the incumbent 
of tlie mother church. 

Consolidated Chaiwlry. — The constitution of a consolidated chapelry 
is also effected by an Order of the King in Council reciting that the 
Ecclesiastical Commissioners, in pursuance of 8 & 9 Vict. c. 70; 14 & 15 



ECCLESIASTICAL COMMISSIONERS 49 

Vict. c. 97; 19 & 20 Vict. c. 55 ; and 34 & 35 Vict. c. 82, have laid 
before His Majesty a representation that it is expedient that certain 
contiguous portions of (two or more parishes) should be formed into a 
consolidated chapelry for all ecclesiastical purposes and assigned to 
the consecrated church of (naming it), with the consent of the bishop 
and patrons. This only recites the representation was that the places 
named should be formed into a consolidated chapelry for all " ecclesias- 
tical purposes," and should be assigned to the church named. There is 
nothing in the Order as to celebration of marriages, etc., or fees, as sec. 

10 of the Act 8 & 9 Vict. c. 70, provides that banns of marriage may be 
'published, and marriages, baptisms, and churchings, and burials per- 
formed in the church of any consolidated chapelry, but that the fees, 
unless voluntarily relinquished, are to go to the incumbent of each of 
the parishes out of which it is formed during the respective incum- 
bencies, and the clerk's fees to the clerk of each parish during con- 
tinuance of his office, and after the next avoidance of such respective 
incumbencies, and the situation of such respective clerks shall have 
become vacant, such fees shall belong and be paid to the incumbent of 
such consolidated chapelry and the clerk of the church thereof. 

It is presumed that until the incumbent of either a district chapelry 
or a consolidated chapelry became entitled to the fees, the cure would 
not become a new parish under 19 & 20 Vict. c. 104, s. 14. 

In both cases of a district chapelry and a consolidated chapelry, the 
amount of preliminary endowment required rests in the discretion of 
the Commissioners, who are guided in this respect by the views of the 
bishop, and by the circumstances of the particular case. 

The patronage of the church can be settled, before its consecration, 
by a deed of agreement under the Acts of 8 & 9 Vict. c. 70, s. 23, and 

11 & 12 Vict. c. 37, s. 4, to which deed the bishop and the patron and 
the incumbent of the parish within which the new church stands are 
parties, or, after consecration, by an instrument of surrender under the 
Acts 3 Geo. iv. c. 72, s. 15, and 1 & 2 Vict. c. 107, s. 15. The Commis- 
sioners are not parties to the first deed ; but the draft should be for- 
warded to their office for perusal before the engrossment is made. The 
other instrument, to which they would be parties, is prepared by them. 

The terms of these sections have been treated in practice as autho- 
rising an agreement by the incumbent, that the district shall be con- 
stituted and the patronage go in accordance with the agreement on the 
determination of the incumbency. This was done in the case of St. 
John's, Bovey Tracey, which was constituted a district chapelry in 1896, 
the agreement as to patronage having been made in the life of the former 
incumbent. 

(3.) Particular Districts under the Private Patronage Acts, 1 <Sc 2 
Will. IV. ^. 38 ; 3 (£^ 4 Vict. c. 60 ; 14 & 15 Vict. c. ^1 —Declaration of 
Patronage. — The patronage of a church, and of any district to be assigned 
to it, may be vested by the Commissioners before consecration in tlie 
persons, or in the nominees of the persons, who have built and endowed 
the church to the satisfaction of the Commissioners, and have in the 
like manner provided a repair fund for it. No other concurrence than 
that of the bishop is needed, but the patron and the incumbent of the 
mother cure are entitled to three months' notice beforehand from the 
Conmiissioners ; and their objections have to be considered. Moreover, 
the patron is entitled to oust the promoters by undertaking to do what 
they propose doing. Eecourse is generally had to these Acts in cases 
VOL. V. 4 



50 ECCLESIASTICAL COMMISSIONERS 

where there is opposition to the proposed arrangements on the part of 
the patron or incumbent of the mother cure, and where the endowment 
required by the New Parishes Acts is not forthcoming. A district 
formed under these Acts is termed a "Particular District/' 

The document assigning to a church a particular district is not as in 
the other cases ratification by an Order of the King in Council of a 
scheme or representation of Ecclesiastical Commissioners, but an instru- 
ment under the seal of the Ecclesiastical Conmiissioners and the bishop, 
by which the Commissioners, in exercise of the powers given by the 
Church Building Acts, particularly 1 & 2 Will. iv. c. 88 ; 14 & 15 Vict. 
c. 97 ; 19 & 20 Vict. c. 55, with the consent of the bishop, assign to the 
church a particular district described in the schedule, and with the like 
consent in execution of the powers in the Church Building Acts, particu- 
larly 1 & 2 Will. IV. c. 38 ; 3 & 4 Vict. c. 60 ; 7 & 8 Vict. c. 56 (such 
two lastly mentioned Acts being two of the Church Building Acts), and 
in the said Act of 14 & 15 Vict. c. 97 ; 19 & 20 Vict. c. 55, declare that 
banns of matrimony shall be published, and that marriages, baptisms, 
cliurchings, and burials shall be solemnised or performed, etc., and that 
the fees shall, after the next avoidance of the incumbency of the mother 
parish, belong to the incumbent of the particular district. The particular 
district becomes a distinct parish when the fees are payable to the 
incumbent in accordance with sec. 14, of 19 & 20 Vict. c. 104; as to 
which, see infra. 

(4.) Separate Districts for Sinritual Purposes. 

(5.) New Parishes. 

Under the Neiv Parishes Acts, Q &7 Vict. c. 37 ; 7 c^ 8 Vict. c. 94— 
Fornuitimi. — The Commissioners, with no other concurrence than that 
of the bishop of the diocese, may recommend to His Majesty in Council, 
that a separate district for spiritual purposes should be constituted 
before the provision of a consecrated church for such district. One 
month's notice, however, of the application has to be given by the 
Commissioners to all patrons and incumbents concerned; and their 
objections, if any, have to be considered. On a church being provided 
and consecrated, and appi*oved by the Commissioners, the district becomes 
a " New Parish." 

Endoioment. — A permanent endowment of at least £150 per annum 
must be secured to the new district at the time of its formation, or an 
adequate {i.e. an equivalent and secured) maintenance for the minister 
must be available from other sources. 

Patronage. — The patronage may be assigned by the Order of His 
Majesty in Council creating the cure, to the promoters or their nominees, 
in consideration of their contributing, in a manner and to an extent 
satisfactory to the Commissioners, either towards the endowment, or 
towards the erection of a permanent church for the district,; and, unless 
80 assigned, shall be exercised by the Crown and bishop alternately. 

The constitution of a district for spiritual jMrposcs under these Acts 
is effected wliere there is no consecrated church or chapel in it, by an 
Order of the King in Council, reciting that under the powers of 6 & 7 
Vict. c. 37, and when endowment is provided wholly or in part by 
Commissioners out of their funds, also 3 & 4 Vict. c. 113 (see s. 67), and 
23 & 24 Vict. c. 124 (see s. 12), the Ecclesiastical Commissioners have 
prepared a scheme for constituting a separate district for spiritual pur- 
])08e8, that persons have contributed and paid to the Commissioners a 
sum for an endowment, and the Commissioners have agreed in respect 



ECCLESIASTICAL COMMISSIONEES 51 

thereof to pay an annual sum, and to grant a capital sum out of their 
common fund, and the desire of the contributors as to patronage, the 
Commissioners, with the consent of the bishop, propose that a separate 
district shall be constituted for spiritual purposes, and that the 
patronage of such district and new parish shall be vested in the 
persons named. 

Under sees. 11 and 13 of 6 & 7 Vict. c. 37, a minister may be 
appointed for such pastoral duties as are specified in his licence, and a 
temporary place of worship licensed by the bishop. As soon as a church 
is approved of and consecrated, the district becomes a new parish for all 
ecclesiastical purposes (see s. 15). Under sec. 19 the Commissioners 
may make grants for endowment. The Act 6 & 7 Vict. c. 37, only 
applied where there was no church; but under 19 & 20 Vict. c. 104, 
s. 1, a district may be constituted under 6 & 7 Vict. c. 37, and 7 & 8 
A^ict. c. 94, notwithstanding there is a church already in it. The Com- 
missioners may specify such church as the church of the new parish. 

Whenever a church is to be built under the Acts on a new site, the 
site should be conveyed to the Commissioners, and the church should 
be built according to plans approved beforehand by the Commissioners. 
jSTo building, unless it be of stone or brick, and consecrated, is regarded 
as a church. 

As to Lord Blandford's Act, 19 & 20 Vict. c. 104, see Vol. II. p. 285 ; 
and as to the determination of rights of burial or marriage in the old 
parish, the cases there cited of Hiighes v. Lloyd, 1888, 22 Q. B. D. 157, 
and Fuller v. Alford, 1882, 10 Q. B. D. 418; and see as to a claim to 
fees of the incumbent of the mother church during whose incumbency a 
district has been parted off from it, B. v. Alston, 1848, 12 Q. B. 971 ; see 
also Tuchiess v. Alexander, 1863, 9 Jur. K S. 1026; 2 Drew.& Sm. 614; 
62 E. E. 752 ; and as to voting for church rates, Gough v. Jones, 1863, 
9 Jur. N. S. 83, afhrmed on appeal, 3 Moo. P. C. K S. 1 ; 16 E. R. 1 ; and as 
to voting for election of churchwardens of old parish, R. v. Stevens, 1863, 
3 B. & S. 333 ; 32 L. J. Q. B. p. 90 ; S. C. nom B. v. Archdeacon of Exeter, 
1863, 1 W. R. 262 ; Phill. Eccl. Laio, pp. 1477, 1729 ; but see a case of 
a district chapelry, Varty v. Nunn, 1841, 5 Jur. 0. S. p. 1138, not cited. 
This seems to have been somewhat different, as it was a case of a distinct 
parish formed on a division of the parish of Hackney into three distinct 
parishes, under sec. 16 of 58 Geo. ill. c. 45 ; see these cases discussed in 
Prideaux on Churchivardens, ed. 1895, p. 37, by Mackarness. See 
District Parishes. 

In considering the statutes and cases it is necessary to bear in mind 
that distinctions are in some cases taken between " spiritual " purposes, 
'* ecclesiastical " purposes, and " other " or temporal purposes. 

See as to apportionment of charity funds appropriated for the repair 
of the church of the old parish. In re Church Estate Charity, Wandsworth^ 
1871, L. R. 6 Ch. 296, and s. 22 of 8 & 9 Vict. c. 70. 

The Compulsory Church Rate Abolition Act, 31 & 32 Vict. c. 109, 
8. 6, contains a provision that the inhabitants of a district are alone to 
vote in respect of a rate for repair of the church of their district ; but 
1 laving regard to the provisions of that Act, church rates are of little 
importance. See Rates (Church). 

Ecclesiastical Leases, etc. — 

The following is the substance of instructions issued by the Ecclesiastical 
Commissioners in reference to sales, exchanges, or leases under the provisions 



52 ECCLESIASTICAL COMMISSIONEKS 

of the (Ecclesiastical Leasing) Acts, viz. the 5 & 6 Vict. c. 108 ; 21 & 22 Vict. 
c. 57 ; and 28 & 29 Vict. c. 57, by which it is competent to an incumbent, 
with the consent of the patron of his living and the Commissioners, to sell, 
exchange, or lease the lands, houses, mines, minerals, or other property- 
belonging to his benefice. In cases where the property proposed to be sold, 
other than minerals, has been acquired by the benefice through the medium 
of the Governors of " Queen Anne's Bounty," the Commissioners decline to 
take proceedings with a view to its sale under the provisions of the Ecclesi- 
astical Leasing Acts. 

Proposals should be submitted for the consideration of the Commissioners 
in a prescribed form, signed by or on behalf of the incumbent as soon as 
specific terms have been provisionally agreed upon with the intending pur- 
chaser or lessee, and accompanied by the surveyor's valuation, if a surveyor 
has been employed. 

The whole of the proceeds derived from the sale of glebe land (except 
moneys which, in respect of any sale, shall become due and payable by way 
of perpetual annual chief or other rent or rent-charge), or from the working of 
minerals belonging to a benefice which have been sold or let, are required to 
be paid over to the Commissioners and invested by them in the public stocks 
or funds, until laid out in the purchase of other lands, houses, and heredita- 
ments, inclusive of freehold ground rents, and the dividends thereof will be 
paid to the incumbent for the time being of the living, subject to certain 
provisions with respect to the appropriation to the purposes of the Com- 
missioners' common fund of the improved value of the living arising by 
means of any such sale or lease ; but these provisions do not affect the 
incumbent in possession at the time of the sale or grant of the lease, and are 
subject to the following enactment, viz. that the annual average income of 
the benefice affected shall not be left at a less sum than £600 if the population 
thereof amount to 2000, nor at a less sum than £500 if the population thereof 
amounts to 1000, nor in any other case at a less sum than £300, and that in 
making additional provision for the cure of souls out of such proceeds the 
wants and circumstances of the places in which the lands, mines, minerals, 
quarries, or beds demised or sold are situate shall be primarily considered. 

In cases where the payment by the purchaser or lessee of all the costs and 
charges is not stipulated for under the terms agreed upon for the sale of 
glebe land or the sale or letting of minerals, the costs and charges incurred 
by or on behalf of the incumbent as well as those of the Commissioners' agents 
may be deducted from the proceeds of the sale or lease. 

In the case of sales the charges which the Commissioners would be pre- 
pared to allow out of the consideration money for the remuneration of the 
solicitor acting on behalf of the incumbent must not exceed the undermen- 
tioned scale, which covers any charge for negotiation, viz. : — 

£ £ s. d. 

Purchase money ... not exceeding 50 . 2 2 

„ exceeding £50 and „ 100 . 3 3 

£100,, „ 150, .400 

„ „ £150,, „ 200 . 5 

£200,, „ 300 . 6 

£ s. d. £ 

Above £300, for the remainder of the first £1000 2 per 100 

For the second and third £1000 . . . . 1 „ lOG 

For the fourth and each subsequent £1000 up to 

^10,000 10 „ 100 

For each subsequent £1000 up to £25,000 . . 5 „ 100 
For each subsequent £1000 . . . . 2 6 „ lOa 

The undertaking for the payment of costs which is appended to the form 



ECCLESIASTICAL COEPORATIONS 53 

of proposal is intended, in the event of the proposal being abandoned, as a 
security for the payment of the costs of the Commissioners' own agents, viz. 
those of their surveyors for advising as to the expediency of a proposal, and 
of their solicitors for approving the draft of the lease or conveyance ; these 
costs are systematically kept as low as practicable, but their amount varies 
with the circumstances of each particular case. 

No proposal will be considered by the Commissioners unless the under- 
taking be signed by or on behalf of the incumbent. 

The notice of a sale which is required to be given to the bishop of the 
diocese and is now limited to one month is sent from the Commissioners' 
office. 

These statutes do not authorise any dealing with the house of residence 
belonging to a living or with the appurtenances of the same. 

Powers of Ecclesiastical Commissioners. — Some of the powers of the 
Ecclesiastical Commissioners have been stated in the preceding pages. 
But the wide variety of work done by the Ecclesiastical Commissioners 
can best be appreciated by reference to their annual reports. Thus 
taking the report of 1907 for the year ending Nov. 1906, in addition to 
constituting and assigning forty-nine districts under the designation of 
district chapelries, consolidated chapelries, particular districts, districts 
and new parishes, and of approving churches under the Church Building 
Acts and Powers, noticed ante, it appears that inter alia, under the 
powers conferred on the Ecclesiastical Commissioners, or the Crown in 
Council on their recommendations, the following things were done : — 
The boundaries of twenty-two districts or new parishes were altered 
under the Acts 7 & 8 Vict. c. 94, 13 & 14 Vict. c. 94, 32 & 33 Vict. c. 49. 
In two cases new churches were substituted for old or existing parish 
churches under the Acts 8 & 9 Vict. c. 70, and 19 & 20 Vict. c. 55. In 
sixteen cases tables of fees were authorised; one hundred and thirty- 
nine conveyances of sites for churches, burial grounds, parsonage houses, 
and glebe respectively were accepted. A long list is given of sales of 
reversions and purchases of leases under 17 & 18 Vict. c. 116, and of 
sales effected and leases granted under the Ecclesiastical Leasing Act, 
24 & 25 Vict. c. 105, and of benefices augmented under 29 & 30 Vict. c. 
Ill ; (1) sec. 5 or sees. 5 and 11, by grant of capital to meet benefactions 
offered in favour of benefices ; (2) endowing churches in public patron- 
age and others; and (3) in making grants for the maintenance of 
assistant curates; or (4), under sees. 5 and 11, of capital sums towards 
the cost of providing a new parsonage house. 

Authorities. — Phillimore's Ecclesiastical Law, 2nd 1895 ed. ; Jackson's 
Ecclesiastical Dila^piclations, 1905 ed. 

Ecclesiastical Corporations. — An ecclesiastical corpo- 
ration is a corporation of which both the members are spiritual persons 
and the objects are of a spiritual kind. 

Before the dissolution of monasteries, ecclesiastical corporations were 
divided into ecclesiastical secular and ecclesiastical regular corporations, 
of which the first only now exist. They are also, like civil corporations, 
divided into corporations sole and corporations aggregate. 

Ecclesiastical corporations sole are diocesan bishops, deans of English 
and Welsh cathedrals, prebendaries, archdeacons, rectors, vicars of ancient 
parishes, probably a vicar-choral and a priest-vicar of a cathedral of the 
old foundation (as to which last point see Greaves v. Parfitt, 1860, 7 
C. B. N. S. p. 838), but this may depend upon the charter of incorporation. 



54 ECCLESIASTICAL CORPOEATIONS 

A perpetual curate also under the Acts 6 & 7 Vict. c. 37, and 
under 19 & 20 Vict. c. 104, ss. 22, 23, is a corporation sole. Ecclesi- 
astical corporations aggregate are at present deans and chapters, and 
also certain other corporations or colleges, as vicars -choral, priests- 
vicars, senior-vicars, curators and vicars, minor canons and ecclesiastical 
hospitals. The incumbent and churchwardens may also by custom in 
certain parishes constitute ecclesiastical corporations aggregate. [But 
see the remarks of Lindley, M.R, in Fell v. Official Trustee of Charity 
Lands, [1898] 2 Ch., at p. 51, where he says that churchwardens may 
be a quasi-corporation for the purpose of holding land and the devolution 
of property, but they are not a corporation in the sense that they are a 
corporate entity — tliat is to say, a person in point of law^nor that they 
can sue or be sued by any corporate name.] See also Churchwarden. 
When a clergyman becomes entitled to a benefice or preferment, he 
becomes ipso facto at common law either a body corporate sole or a 
member of a corporation aggregate, or both (as to the last, an instance 
is furnished in the case of a dean who, if he holds his possessions singly, 
is a corporation sole for such purpose; but yet with his chapter is a 
corporation aggregate), and the estate in the freehold of the benefice is 
vested in him. 

In the conception of the law, however, the continuance of an ecclesi- 
astical corporation does not depend on the continuance of its possessions, 
the theory being that corporations were incorporated by the bishop before 
lands were assigned to them out of the common possessions of the See. 
The original method of giving property to the Church was to give it to 
the saint to whom a church was dedicated, the church being mentioned 
for the purpose of the identification of the particular church to which 
the gift was made (e.g. "To thee, St. Andrew and thy church at 
Rochester"), while the bishop or priest or groups of priests who were 
responsible for the management of the particular church were regarded 
as the curators of the saint's property. At a later stage the particular 
church itself is regarded as the owner of the land which it acquires, and 
holds through and in the name of its incumbent or other possessor. 
From this it is only a natural step to the idea of an ecclesiastical 
corporation seised of the property of the church, as though the church 
were a minor and the corporation were its trustee. 

Thus, according to Coke, a parson or vicar is seised in a fee-simple 
qualified (Co. litt. 341 b), though in a certain sense the fee is in abeyance. 
This fee-simple estate he holds for the benefit of the church and his 
successor ; but so far as he may do anything to their prejudice, the law 
treats him as only the possessor of a life estate, and so in modern time 
it has been held that an incumbent cannot cut timber except for repairs 
(Duke of Marlborough v. St. John, 1852, 5 De G. & Sm. 174; 64 E. R. 
10G8 ; [nor can a vicar demise tlie minerals in the glebe 'to a mining 
company (mining new mines) and receive royalties from them. The 
royalties must be invested for the permanent benefit of the living] 
(Bartlett y.FhillijJS, 1859, 4 De G. & J. 414 ; 45 E. R. 160) ; [and as to the 
powers of interference possessed by Ecclesiastical Connnissioners in the 
matter of mining leases, see Ecclesiastical Commissioners v. Wodehousc, 
[1895] 1 Ch. 552.] 

It is also considered by modern conveyancers as very doubtful 
if, apart from other considerations {e.g. of a licence in mortmain), a 
conveyance can be validly made to an incumbent {e.g. a vicar to his 
successors) for the purposes of an ecclesiastical charity, as he cannot 



ECCLESIASTICAL LAW 55 

in his corporate capacity take two different kinds of estates, and it is 
probably safer to vest land intended for such purposes in trustees ; and 
probably all estates vested in ecclesiastical corporations which were of 
the nature of a fee-simple qualified. But as to a bishop (at the suit of 
an interested person, see Jefferson v. Bishop of Durham, 1797, 1 Bos. & 
Pul. 105). Ecclesiastical corporations aggregate could at common law 
alienate their lands; but an ecclesiastical corporation sole could not 
make such alienations valid as against his successor, except with the 
necessary consents, viz. in the case of a bishop, of the dean and chapter ; 
and in the case of a parson or vicar, of the patron or ordinary. The 
rights of ecclesiastical corporations to alienate their lands except for the 
purpose of leasing, which is also restricted, are now prohibited by statute 
(see 1 Eliz. c. 92; 13 Eliz. c. 18. See Waste). As to the powers of 
leasing enjoyed by ecclesiastical corporations, see Ecclesiastical Com- 
MissioNEKS ; Bishop ; Dean and Chapter ; Glebe ; Incumbent ; Dilapi- 
dations, Ecclesiastical. Land cannot be assured in mortmain to an 
ecclesiastical corporation except with the royal licence. As to the 
exceptions, see article Charities, Vol. II. p. 670. As to a perpetual 
curate, see 19 & 20 Yict. c. 104. (See further the article Corporation.) 
\_Authorities. — Pollock and Maitland, History of English Law; 
Bracton ; Coke, Institutes ; Watson, Clergyman s Law ; Grant on Corjjo- 
rations. Case submitted to counsel by the Church Building Society as 
to deeds to convey mission or parish rooms, published by the Incorporated 
Church Building Society, and opinions thereon.] 

Ecclesiastical Courts- — The various Ecclesiastical Courts 
are treated under their respective headings. See, e.g. Archdeacon's 
Court; Arches, Court of; Consistory Court; Provincial Courts, 
etc. 

Ecclesiastical Law. — it would be manifestly impossible 
within the limits of the present article to attempt more than a concise 
statement of the main sources of the existing Ecclesiastical Law of 
England. These are as follows: — 

1. The Common Law. 

2. The Canon Law, so far as it is not opposed to the common or 
statute law, or to the royal prerogative. 

8. The Statute La%o (which includes the Book of Common Prayer). 

It may be pointed out that the common law includes not only the 
common law of the realm in secular matters {jns commune laicum), but 
also the common law of the Church {jus commune ecclesiasticnm), in 
other words, the unwritten part of the ecclesiastical law. See per 
Whitlock, J., in Evers v. Owen (3 Car. I.), Godb. 432. The preamble to 
25 Hen. viii. c. 21 states the principle on which parts of the foreign 
Canon Law have been received in England to be that of usage and 
custom (see the judges' opinion delivered by Tindal, C.J., in E. v. Millis, 
1844, 10 CI. & P., pp. 678 et seq. ; 8 E. K. 844; 59 K. K. 134). 

The Act 25 Hen. viii. c. 19, commonly called the " Act of Submission," 
ratified the assent of the bishops and clergy in convocation to the principle 
that subsequent canons require the licence of the Crown to their enact- 
ment, and the royal assent to their promulgation and execution. This 
Act, so far as it was not merely declaratory of the common law, was in 
the nature of a concordat between the spiritualty and the civil power. 
The canons of 1603 and 1640 (vide infra) were framed under the royal 



56 ECCLESIASTICAL LAW 

licence, and received the royal assent in strict accordance with this 
Act. Sec. 7 of the same Act provides " that such canons, constitutions, 
ordinances, and synodals provincial, being already made, which be not 
contrariant or repugnant to the laws, statutes, and customs of this realm, 
nor to the damage or hurt of the King's prerogative-royal, shall now still 
be used and executed as they were afore the making of this Act." This 
provision, meant to be merely transitory, has, in the events which have 
happened, continued in its former force the whole of the pre-existing 
Canon Law, which is not opposed to the common or statute law or to 
the royal prerogative (see Submission of the Clergy). 

Canons of 1603. — This body of Constitutions and Canons Ecclesi- 
astical was passed by the Convocation of Canterbury under licence from 
the Crown, Bancroft, then Bishop of London, presiding, under a commis- 
sion from the Dean and Chapter of Canterbury, the guardians of the 
spiritualities of the Metropolitan See, vacant by the death of Archbishop 
Whitgift. The Synod began on March 20, 1603 (0. S.), [1604 (N. S.)]. 
The Canons subsequently received the royal assent under the Great 
Seal. They did not receive the sanction of the Convocation of York 
till 1606. They are one hundred and forty-one in number. They are 
clearly binding on the clergy and on laymen holding ecclesiastical offices. 
The exact measure of their authority, other than consensual, over the 
laity generally, is more doubtful. In Hill v. Good (25 Car. ii.), Vaugh. 
302, at p. 327, Vaughan, C.J., held, dealing with Canon 99, that "a 
lawful Canon is the law of the Kingdom as well as an Act of Parlia- 
ment." On the other hand, the now commonly received view of the 
Canons of 1603 is that they do not proprio vigore bind the laity, except 
in so far as they are declaratory of the ancient Canon Law (see per Lord 
Hardwicke, C.J., in Micldleton v. Crofts, 1736, 2 Stra. 1056; 2 Atk. 650; 
26 E. E. 788). Their authority over the clergy has received statutory 
recognition in the Clergy Discipline Act, 1892, 55 & 56 Vict. c. 32, s. 12, 
whereby an offence against morality is defined to include such acts, etc., 
as are "proscribed by the 75th and 109th Canons issued by the Convo- 
cation of Canterbury in the year 1603." In 1866, and again in 1888, 
alterations were made by both Convocations in the Canons of 1603, 
which brought them into harmony respectively with the Clerical Sub- 
scription Act, 1865, 28 & 29 Vict. c. 122, and the Marriage Act, 1886, 
49 Vict. c. 14. These alterations were duly enacted under licence from 
the Crown, and subsequently received the royal assent under the Great 
Seal 

Canons o/1640. — Parliament having been dissolved on May 5, 1640, 
the question arose whether the Convocations then in session were i'pso 
fado dissolved or not, and the following opinion was given on May 10, 
1640:— "The Convocation, being called by the King's Writ under the 
Great Seal, doth continue until it be dissolved by writ or* commission 
under the Great Seal, notwithstanding the Parliament be dissolved." 
This opinion was signed by the following seven distinguished lawyers, 
six of whom were sometime holders of high judicial office, viz. :— The 
Lord Keeper Finch ; Henry (Montagu), Earl of Manchester ; Bramston, 
O.J.; Littleton, C.J.; Sergt. Whitfield; Sir John Bankes, A.-G.; and 
Sir Kobert Heath. 

Fortified by tliis opinion the Convocations of Canterbury and York, 
under licence from the Crown, passed the seventeen Canons of 1640, and 
they duly received the royal assent under the Great Seal on June 30, 
1640 (16 Car. i.). 13 Car. ii. c. 12, s. 5, provides that that Act shall not 



EDITION 57 

extend "to confirm the Canons made in the year 1640 or any of them." 
They have never been abrogated by any synodal act in either province. 
The Act of Car. ii. " leaves them to their own proper synodical authority, 
and merely provides that nothing in that statute shall give them the 
force of an Act of Parliament " (Cardwell, Synodalia, i. 386). " Several 
of them were of such a nature as could give no offence to the temporal 
legislature, relating only to the discipline of the Church and clergy and 
the regulation of the Ecclesiastical Courts " (Gibson, Codex, ii, 956). As 
against the unsupported dicimm of Sir H. Jenner-Fust, in Cooler v. 
Bodd, 1850, 14 Jur. 724; 7 K C. 514, that " the Canons of 1640 never 
had any binding authority in these Courts," may be set their direct 
recognition by Sir E. Phillimore in Elfliinstone v. Purchas, 1870, L. E. 
3 Ad. & Ec. 66, at p. 83. See also per Lord Coleridge, C.J., in B. v. 
Archbishop of York, 1888, 20 Q. B. D. 740, at p. 747. On the whole, 
there seems to be no sufficient reason for regarding the Canons of 1640 
as a body, as in a different category from that of the Canons of 1603. 

\_AiUhorities. — Lindwood, Provinciale ; Godolphin, Bep. Can. or 
Ahr. ; Oughton, Ordo Judiciorum ; Ayliffe, Parergon ; Johnson, English 
Canons; Gibson, Codex, Oxford ed., 1761; Watson, Clergyman s Law; 
Burn, Eccl. Law, 9th ed. (by Phillimore) ; Eogers, Eccl. Law ; Stephens, 
Laws Belating to the Clergy ; Cripps, Church Law, 6th ed., 1886 ; Philli- 
more, Eccl. Law, 2nd ed., 1896; Maitland, Bo man Canon Law in the 
Church of England."] 

Ecuador. — Area and Constitution. — Ecuador is a Eepublic of 
South America with an area of about 116,000 square miles — or nearly as 
large as the United Kingdom. Like the Eepublic of Venezuela, q.v., it 
was formed in 1830 by secession from the Free State founded by Simon 
Bolivar within the Spanish colony of New Granada. The constitution 
bears the date of February 13, 1884 (Hertslet's State Papers, vol. Ixxvii. 
p. 1295), but was modified by Decree of August 6, 1887 {ibid. Ixxviii. p. 
85), and January 14, 1897 {ibid. vol. Ixxxix. p. 1095). 

Under it the executive power is in a directly elected President, and 
the legislative in a Congress of two Houses — a Senate and a Chamber 
of Deputies. The President has a power of veto, but cannot ultimately 
refuse his assent to legislation; nor can he dissolve Congress. 

Application of British Statutes. — Extradition, q.v., is regulated by 
Treaty of September 20, 1880 (St. E. & 0., Eev. 1904, vol. v., " Fugitive 
Criminal," p. 76). 

The Eepublic has not joined the International Copyright, q.v., Union, 
but it entered into a Convention of August 26, 1892 (Hertslet's State 
Papers, vol. Ixxxiv. p. 75), with Great Britain as regards Trade Marks and 
Designs, and the provisions of the Imperial Act have been accordingly 
applied by Order in Council (St. E. & 0., Eev. 1904, vol. ix., " Patents, 
etc." p. 12). 

The British Eegulations of 1896 for preventing Collisions at Sea 
apply to ships of Ecuador, whether within British jurisdiction or not 
{ibid., vol. viii. "Merchant Shipping," p. 285), and provision has been 
made by Order in Council {ibid., p. 77) for the apprehension of seamen 
deserting from merchant sliips of the Eepublic. 

Edition. — In the case of contracts between publishers and 
authors, reservations are sometimes made as to the number of " editions " 
to be issued, and as to the rights and obligations of the parties with 



58 EDITOK 

regard to the first and subsequent editions. When there is no agree- 
ment as to the number of copies constituting an edition, disputes may 
arise, as in Kcade v. Bentley, 1858, 27 L. J. Ch. 254. In that case AVood, 
V.-C, defined editions as " the putting forth of a work before the public 
at successive periods, and whether this is done by moveable type or by 
stereotype it does not seem to me to make any substantial difi'erence." 
" The edition," he went on to say, " might be of one, two, three, or any 
number of thousands of copies, and if a person chose to print twenty 
thousand and put forth to the public a limited number at a time, each 
' issue ' of the copies would be * an edition in every sense of the word.' " 

In Warnc v. Routledge, 1874, L. K. 18 Eq. 497, a publisher who had 
made a verbal agreement with the author for the publication of a book 
on " royalty " terms endeavoured to prevent the publication of a new 
ed-ition of the book by another publislier on the ground that he should 
have the exclusive right of publication and sale until all the copies of 
the first edition were disposed of. The contract between author and 
publisher contained no express terms to that effect, and Jessel, M.R, 
in refusing the injunction, held that, although so long as the con- 
tract existed it was an exclusive contract, so that no one else, neither 
the author nor his assignee, could publish the book, yet the author 
was at liberty to determine the " partnership adventure " at any time, 
and that on such determination the publishers, on the one hand, could 
continue to sell all the copies which they had printed in reliance upon 
the agreement, and the author, on the other hand, could at once arrange 
for the publication of a new edition with another publisher. •' It is said," 
added the Master of the Eolls, "that if you give the publisher no protection, 
the result may be that the author may publish another edition in a day 
or two after the publishing of the first edition, and so destroy the value 
of the remaining copies of the first edition remaining unsold. That may 
be. And it is said that it is so unreasonable that you must infer some 
stipulation to prevent it. Why ? No doubt partnerships at will have 
their inconveniences as well as their conveniences. If you want pro- 
tection for a definite term you must contract for it." [See also 
Encyclopedia]. 

Editor. — The editor of a newspaper is the man to whom the pro- 
prietor has intrusted the responsibility of deciding what words shall be 
published in its columns. If he allows anything libellous to appear, he 
is liable; and so is the proprietor. For the proprietor has given his 
printers general orders to print whatever the editor sends to press ; he 
is therefore civilly liable for whatever the editor passes, though he never 
saw it, and even though he has expressly forbidden his editor to publish 
anything libellous or on the verge of being libellous. In former days the 
proprietor was also liable criminally (see R v. Walter, 17^9, 3 Esp. 21 ; 
6 K. li. 808). But that has now been altered ; see Vol. IV. p. 475. 

It is the duty, then, of an editor to read carefully all " copy " before 
it goes to press, and to excise anything that is libellous. 

Letters from correspondents are the most frequent source of danger. 
Persons in the locality whence the letter came will catch the hidden 
meaning of some apparently general observation, and apply it to the 
person whom the writer had in his mind. Danger lurks, too, in adver- 
tisements, especially in those intended for the agony column. Keports 
of public meetings were formerly a constant snare; as the editor trusted 
to the known accuracy of his reporters, and reproduced a full and true 



EDUCATION 59 

account of everything said at the meeting, thinking that he was thereby 
doing his duty to his readers, and that no action would lie against him 
for merely placing those who were absent in the same position as those 
who were present at the meeting. But this view of the duty of an 
editor was roughly dispelled by two important decisions in actions 
brought against the proprietor of the Manchester Courier {Purcell v. 
Sowler, 1877, 2 C. P. D. 215, and Panklmrst v. Soivler, 1886, 3 T. L. K. 
193). Eecourse was had to the legislature; and a somewhat limited 
privilege was conferred on fair and accurate reports of the proceedings 
of a public meeting, first by sec. 2 of the Newspaper Libel and Kegistra- 
tion Act, 1881, and secondly by sec. 4 of the Law of Libel Amendment 
Act, 1888. But it still remains the duty of the editor to edit all reports 
of public meetings, and to excise all matter that is " not of public con- 
cern, and the publication of which is not for the public benefit." 

Other provisions are contained in these beneficial Acts, restricting the 
liability of the editor of a paper to criminal proceedings for libel. These 
are discussed (Vol. IV. p. 472) under the head of Defamation, Criminal 
Lain as to Libel. [See also Encyclopedia]. 

Education. — Prior to the Board of Education Act of 1899 and 
to the Education Act of 1902 (two Acts which effected a revolution in 
the law of education in England), the only national system of education 
existing in England was that set up under the Elementary Education 
Acts. Xot that the legislature had omitted to concern itself with 
education higher than elementary. Eor the development of secondary 
education special powers of dealing with certain educational endow- 
ments had been conferred upon the Endowed Schools Commissioners 
and later on the Charity Commission; whilst special statutory pro- 
vision had been made for the furtherance of technical and agricultural 
instruction by means of pecuniary grants ; and, finally, in the domain 
of higher or university education, the legislature had imposed special 
regulations upon particular institutions. But prior to 1902, elementary 
education was the only kind or " grade " of education which had been 
systematically dealt with by the law as a whole. The law of education, 
therefore, falls naturally into two branches — («) the history of elementary 
education down to 1899 and 1902; it is necessary to understand this in 
order to appreciate the changes made by the two great Acts of Parliament 
above referred to ; and {h) the existing law as the result of the modifica- 
tions introduced by those two statutes, viz. the Board of Education Act 
of 1899 and the Education Act, 1902. For the former, see also, under a 
separate head, the Board of Education. Other educational topics 
which have also been dealt with by statutes, most of them passed prior 
to the recent great enactments of 1899 and 1902, are treated under 
separate heads, e.g. Endowed Schools ; Technical Instruction ; Uni- 
versities ; and the same is true as regards the provision of elementary 
instruction for special classes of the community {c.(j. for certified Poor 
Law, Industrial, and Keformatory Schools, see Poor Laav, etc.). 

{A) History of Elementary Education down to 1902. — It was in the 
year 1833 that the first grant in aid of education was made by the 
Government. In 1839, the Education Department was first constituted 
by an Order in Council, appointing a Committee of the Privy Council 
to " superintend the application of any sums voted by Parliament for 
the purpose of promoting public education." But down to the year 
1870, the part of the State in the work of education was confined to the 



60 EDUCATION 

distribution of an annual grant in aid of the private efforts of the 
National Church and other religious denominations. The first system 
of public education dates from the Elementary Education Act, 1870, 33 
& 34 Vict. c. 75, which for the first time cast upon the community the 
duty of supplying adequate school accommodation in so far as private 
effort fell short of the needs of the population. Large portions of this Act 
have been repealed, but it still remains the basis of the national system of 
public elementary education in England and Wales. By the Act of 1870, 
the country was mapped out into school districts. In London the school 
district was coterminous with the Metropolis, in boroughs with the borough, 
and elsewhere with the parish {ibid, first schedule). Sec. 5, now repealed, 
enacted that there should be provided for every school district a suffi- 
cient amount of accommodation in " public elementary schools," avail- 
able for all the children resident in such district for whose elementary 
education efficient and suitable provision was not otherwise made, and 
that where there was an insufficient amount of such accommodation 
(referred to in the Act as " public school accommodation ") the deficiency 
should be supplied in manner provided by the Act. An "elementary 
school " is defined (s. 3, still in force) as " a school or department of a 
school at which elementary education is the principal part of education 
there given, provided no fee exceeding 9d. a week is charged." The 
looseness of the definition was of importance in enabling instruction to 
be given in elementary schools in subjects which could hardly be classed 
as elementary in the ordinary acceptation of the term. Thus the 
elasticity of the term " elementary " in some sort compensated for the 
want at that period of a State system of secondary education. This undue 
extension, however, was put an end to by the judgment in R. v. Cockerton, 
[1901] 1 K. B. 322, 726, referred to later. The term " public elementary 
school " has a precise technical meaning. Such a school must be con- 
ducted subject to the " conscience clause " (s. 7, sub-sees. 1 and 2) ; it must 
at all times be open to the inspection of His Majesty's inspectors (subs. 3), 
and it must further be conducted in accordance with the conditions 
required to be fulfilled by an elementary school in order to obtain a 
parliamentary grant (subs. 4). These provisions are still in force (see 
Blencoiue v. Northants County Council, 1897, 23 T. L. K. 319). " Public 
elementary schools," under the Act of 1870, were thus of two kinds — 
(a) those provided by the boards and called board schools; {h) those 
provided by denominations or private owners, and mainly by the Church 
of England. The former were financed by means of the parliamentary 
grant, by fees in some cases, and the rates made good any deficiency, 
while the voluntary schools received the parliamentary grant, charged 
fees, and relied on voluntary subscriptions for the balance. There was 
this further difference, that board schools were subject to the Cowper 
Temple Clause (s. 14), i.e. that "no religious catechism/ or religious 
formulary . . . distinctive of any particular denomination shall be 
taught in the school"; while voluntary schools were mostly provided 
under trust-deeds specially framed to secure denominational religious 
teaching, Jewish, Roman Catholic, or Church of England. 

It was for the Education Department to determine, with respect 
to every school district, whether there was a deficiency of public 
school acconnnodation (s. 8). But this duty is now, by the Act of 
1902, thrown on the Authority as constituted under that Act (see ss. 8 
and 9 of the 1902 Act), which also provides machinery by which the 
board can compel such duties to be carried out (s. 16). Sees. 8 to 13 of 



EDUCATION 61 

the Act of 1870, which defined the duty of school boards in relation to 
the provision of accommodation, are therefore repealed, as are sees. 63 
to 66, which gave powers to the Department to enforce the earlier 
sections. The sections of the earlier Act dealing with the election and 
proceedings of the school boards {e.g. ss. 30 to 34), and the constitu- 
tion of school board districts (ss. 40 to 52), and also certain provisions 
as to expenses and accounts of school boards (ss. 53 to 66) are also 
repealed by the Act of 1902. 

A school board was a body corporate, with power to hold land for 
the purposes of the Act, without licence in mortmain (s. 30, subs. 1). 
Similar powers are conferred by sec. 23 (5) of the Act of 1902. As to 
the compulsory purchase of land by a school board under the authority 
of an order of the Education Department, and now of the Board of 
Education, to be obtained after certain preliminary formalities, and 
requiring confirmation by Parliament, see sec. 20, still in force. Sites 
and schoolhouses may be purchased by agreement under the Lands 
Clauses Acts by the managers of any public elementary school (s. 21, 
still in force), whilst the School Sites Acts apply in the case of a school 
board, and now of the new Authority, as if the board were trustees or 
managers of a school within the meaning of those Acts (s. 20). As to 
the power of the managers of any elementary school to transfer their 
school to the school board, and now to the L. E. A., see sec. 23, still in 
force. 

Sec. 14 of the Act of 1870 already referred to provided that every 
school conducted by a board must be subject to the following regulations : 
— (1) The school must be a public elementary school within the mean- 
ing of the Act ; (2) no religious catechism or religious formulary, which 
was distinctive of any particular denomination, should be taught in the 
school as above mentioned. This provision still applies to all public 
elementary schools provided by a Local Education Authority (referred 
to in this article as L. E. A.) under the Act of 1902. 

Industrial schools, as intimated above, do not come within the scope 
of the present article, but brief reference may here be made to the 
powers of school boards, and now of L. E. A.s, in relation to this class 
of schools. A L. E. A. has power under the Act of 1870 to contribute 
to an industrial school (s. 27), also to establish, build, and maintain such 
a school (s. 28) ; but a school so estabhshed is nevertheless under the 
jurisdiction of " one of His Majesty's Principal Secretaries of State " 
{i.e. the Home Secretary), and subject to the provisions of the Industrial 
Schools Act, 1866, 29 & 30 Vict. c. 118, and not of the Elementary 
Education Act {ibid.). The same observations apply to the case of 
" Day Industrial Schools " under the provisions of the Elementary 
Education Act, 1876, 39 & 40 Vict. c. 79, s. 16. Q:>. the Elementary 
Education (Industrial Schools) Act, 1879, 42 & 43 Vict. c. 48 ; and also 
sec. 15 of the Elementary Education Act, 1876, and Sched. III. (8) of 
the Education Act, 1902. 

As already mentioned, the financial provisions of the Act of 1870 
are now repealed, a new aid grant payable to L. E. A.s under sec. 10 of 
the Education Act, 1902, having taken the place of the parliamentary 
grant under the earlier Act. 

From what has been already said, it will be seen that the Act of 
1870 provided an adequate machinery for the supply of schools. It 
remains to indicate the successive stages by which education was made 
first compulsory and next free. The first step in this direction was 



62 EDUCATION 

taken in the Act of 1870, sec. 74 (still in force) of which empowered, 
but did not oblige, school boards to make by-laws compelling the 
attendance at school of children of such age, between live and thirteen 
(now fourteen), as might be thereby fixed. These powers are now trans- 
ferred to the L. E. A.s under the Actj of 1902. Any by-law under this 
section requiring the attendance of a child between the ages of ten 
— now by the Elementary Education (School Attendance) Act, 1893, 
56 & 57 Vict. c. 51, s. 1, raised to eleven, and by Eobson's Act (the 
Elementary Education (School Attendance) Act, 1893, Amendment 
Act, 1899, to tivelve — and fMrteen, and now, by virtue of sec. 6 (1) of the 
Elementary Education Act, 1^()0, fourteen years, is to provide for the 
total or partial exemption of such child from the obligation to attend 
school on reaching a standard of education specified in such by-law. 
Any of the following reasons excuse attendance : — (1) the child being 
under efficient instruction in some other manner ; (2) sickness or any 
unavoidable cause ; (3) want of a public elementary school within such 
distance not exceeding three miles by road from the child's residence, 
as the by-laws may prescribe. All by-laws require the approval of the 
Board of Education, and cannot be enforced until also sanctioned by 
Order in Council. Any penalty for breach of a by-law may be recovered 
in a summary manner, but must not exceed with costs the sum of five 
shillings for each offence. Since sec. 6 (3) of the Elementary Education 
Act, 1900, the maximum penalty is raised to twenty shillings. 

The Elementary Education Act, 1876, 39 & 40 Vict. c. 79, lays it 
down (s. 4, still in force) to be the duty of the parent of every child — 
defined (s. 48) to mean a child between the ages of five and fourteen — 
to cause such child to receive efficient elementary instruction in reading, 
writing, and arithmetic. Next, this Act forbids (s. 5, still in force), 
under pain of a penalty not exceeding forty shillings (s. 6), any person 
to take into his employment (s. 5) any child — (1) who is under the age 
•of ten (raised by 56 & 57 Vict, c. 51, s. 2, to eleven, and as a result of 
Kobson's Act to twelve years) ; or (2) who being of the age of eleven (now 
tivelve) years or upwards, has not obtained such a certificate either of 
his proficiency in reading, writing, and elementary aritlimetic, or of 
previous due attendance at a certified efficient school (a term which 
includes a certified Poor Law school) as is in the Act mentioned 
{Sched. I.), unless such child is employed and is attending School (i.e. 
as a " half-timer ") in accordance with the provisions of the Factory 
Acts, or of any by-law under the Elementary Education Acts. The 
standard of proficiency referred to is the fourth or any higher standard 
(ibid. Sched. I.) fixed by a by-law (cp. Elementary Education Act, 
1880, 43 & 44 Vict. c. 23, s. 4). But under sec. 9 (still in force) of the 
Act of 1876 exceptions are made where there is no public elementary 
school within two miles of the child's residence measured* according to 
the nearest road, and in case of employment during holidays or out of 
school hours. Under sec. 11 (still in force) known as the "wastrel 
clause," a school attendance order may be made, on the complaint of the 
L. E. A., by a Court of summary jurisdiction in the following cases : — 
(1) Where a parent habitually neglects to provide efficient elementary 
instruction for his child; (2) where any child is found habitually 
wandering, or not under proper control, or in the company of rogues, 
vagabonds, etc. If the attendance order is not complied with, the 
imrent may be fined, or the child sent to a certified industrial school 
.(s. 12). For the enforcement of the provisions of the Act, the local 



EDUCATION 63 

authority in school districts where there was a school board was that 
board ; for other school districts a new authority was created by the 
Act, namely, the school attendance committee, appointed annually in 
a borough by the council, and elsewhere by the guardians, and consist- 
ing of not less than six nor more than twelve members of the appointed 
body (s. 7). The local education authorities under the Act of 1902 
have now succeeded to the powers of the local authorities under this 
Act, and of the school attendance committees. The Act of 1876 left it 
optional (s. 21, now repealed) for the school attendance committee to 
make by-laws under sec. 74 of the Act of 1870. This defect in the 
system of compulsory education was supplied by the Elementary 
Education Act, 1880, 43 & 44 Vict. c. 23, which requires (s. 2) the 
local authority of every school district to make by-laws respecting 
attendance at school under sec. 74 of the Act of 1870. Power of en- 
forcing the Act is reserved to the Education Department in case of the 
default of a local authority {ihicl. incorporating Act of 1876, s. 27). This 
power is now transferred to the Board of Education, who are to proceed, 
if necessary, by mandamus. See Sched. III. (9) of the Education Act, 
1902. The Act of 1876 is also of importance as defining a "certified 
efficient " school, i.e. a school earning no grant and not supported by 
rates, but where efficient elementary education is carried on so that 
attendance thereat relieves a parent from obligation to send his child to 
an elementary school elsewhere (sec. 48, unrepealed). 

Passing to the subject of the parliamentary grant, it may first be 
noted that the Act of 1870 (s. 96) abolished the building grants which 
had formerly been made. The same section provided that no parlia- 
mentary grant should be made to any school which was not a public 
elementary school within the meaning of the Act ; and sec. 98 (still in 
force) specially empowered the Department to refuse a grant in a 
school board district to a school not previously in receipt of a grant, 
if the Department thought such school " unnecessary ; " see now similar 
provisions under sees. 8 and 9 of the Act of 1902. The further conditions 
(s. 97, unrepealed) requisite for the obtaining of an annual grant are to 
be those contained in the minutes of the Board of Education in force 
for the time being, but no such minute shall be deemed to be in force 
until it has lain for not less than one month on the table of both Houses 
of Parliament. The "code" of minutes of the Board of Education, 
dealing with such matters as the approval of buildings and the provision 
of certificated teachers, is thus of great practical importance, but the 
examination of a mass of administrative detail, liable to constant modi- 
fication and rearrangement, hardly falls within the scope of a strictly 
legal work, and it must suffice here to indicate the statutory limits 
within which the business of administration has to proceed. Tlie " code " 
is revised each year. For the legal effect of the code, see R. v. CockertoUy 
[1901] 1 K B. 322, 726; and M. v. West Riding County Council, [1906] 
2 K. B. 676, reversed in the House of Lords, [1907] A. C. 29. 

The same section (1870, s. 96) contained a provision to the effect 
that the grant should not for any year exceed the income of the school 
for that year which was derived from voluntary contributions, and from 
school fees, and from any sources other than the parliamentary grant. 
This was repealed by sec. 19 of the Act of 1876, 39 & 40 Vict. c. 79, 
which substituted what is known as the 17s. 6d. limit, providing that 
the grant should not in any year be reduced by reason of its excess 
above the income of the school if the grant did not exceed seventeen 



64 EDUCATION 

shillings and sixpence per child in average attendance at the school 
during that year, but should not exceed that amount per child, except 
by the same sum by which the income of the school, derived from 
voluntary contributions, rates, school fees, endowments, and any source 
whatever other than the parliamentary grant, exceeded the said amount 
per child. The whole of this provision was in turn repealed, so far as it 
applied to day schools, by the Voluntary Schools Act, 1897, 60 Vict. c. 
5, s. 2. 

Under the Act of 1876, sec. 19, sub-sees. 2 and 3, unrepealed, where 
the population of the school district in which the school was situate, or 
the population within two miles by road from the school, was less than 
three hundred, and there was no other public elementary school avail- 
able for that district or that population, " a special grant " might be made 
annually to the amount if the population exceeded two hundred of £10, 
and if it did not exceed two hundred of £15. 

The earlier Elementary Education Acts had contained certain pro- 
visions dispensing with the payment of fees in cases of poverty. 
Provision for general free elementary education was made by the 
Elementary Education Act, 1891, 54 & 55 Vict. c. 56, by the indirect 
means of the institution of a " fee grant " out of moneys provided by 
Parliament. Under this Act a fee grant at the rate of ten shillings a 
year might be paid for each child over three and under fifteen years of 
age in average attendance at any public elementary school not being an 
evening school (s. 1). To the receipt of a fee grant the following con- 
ditions are attached under the Act : — (i.) Where {a) the average rate of 
fees received during the year ending the 1st January 1891 was not in 
excess of ten shillings per child, and (h) where an annual grant was not 
made before the last-mentioned date, no fee may be charged (s. 2). (ii.) 
Where the average rate was so in excess, a fee may be charged, but so 
that the average rate of fees does not exceed in any year the amount 
of the said excess {ibid.), (iii.) Where the average rate charged and 
received in respect of fees and books and for other purposes was not so 
in excess of ten shillings, no charge of any kind may be made for any 
child over three and under fifteen years of age (s. 3). Notwithstanding 
the foregoing provisions, however, the Board of Education have power 
under sec. 4 to sanction a fee not exceeding sixpence a week, if they are 
satisfied inter alia tliat this will be for the educational benefit of the 
district ; but in practice the Board are averse to availing themselves of 
this i)ower. Finally, the Act secured general free education by pro- 
viding (s. 5) that the expression " public school accommodation " in the 
Act of 1870 should include public school accommodation without pay- 
ment of fees, and that a deficiency of such accommodation should he 
supplied in manner provided by the last-mentioned Act. Sec. 5 of this 
Act is now repealed; see Sched. III. (5) of the Education Act, 1902. 
Ikit tlie earlier sections of the Act of 1891 above quoted are still in 
force. 

Sec. 97 of the Act of 1870 contained a further provision for poor 
8cho(jl boards by means of an increased grant. This was further extended 
by the Elementary Education Act, 1897, 60 Vict. c. 16, but both pro- 
visions are now repealed. 

Great importance attached to the Voluntary Schools Act, 1897, 60 
Vict. c. 5. Under sec. 1, sub-sec. 1, of this Act there was to be paid 
annually for aiding voluntary schools an aid grant not exceeding in the 
aggregate five shillings per scholar for the whole number of scholars in 



EDUCATION 65 

average attendance. In respect of the distribution of this grant, as of 
the administration of the Act generally, very wide discretionary powers 
were reserved to the Education Department, " due regard being had to 
the maintenance of voluntary subscriptions " (s. 1, subs. 2). Associations 
of schools were to be constituted in such manner and with such govern- 
ing bodies representative of the managers as were approved by the 
Education Department. The grant was to be paid to such associations, 
and different rates might be fixed by the Department for town and 
country schools (s. 1, subs. 3). The share allotted to each association 
was to be distributed by the Education Department after consulting the 
governing body of the association, and in accordance with any scheme 
prepared by that body which the Department for the time being might 
approve (s. 1, subs. 4). These voluntary school associations are still in 
existence, but the financial provisions of the Act are now obsolete, and 
are superseded by the Act of 1902. Under sec. 3 (unrepealed) voluntary 
schools were exempted from rates, and by sec. 4 (unrepealed) a voluntary 
school was defined to mean a public elementary day school not provided 
by a school board. 

In conclusion, it may be convenient to summarise shortly the lead- 
ing statutory provisions affecting religious instruction in public elemen- 
tary schools prior to 1902. (1) (Still in force) no grant may be made 
in any public elementary school in respect of any instruction in religious 
subjects (Act of 1870, s. 97, subs. 1) ; and (2) (still in force) it is no 
part of the duties of any of His Majesty's inspectors to inquire into 
religious instruction, or examine in any religious subject or book {ibid, 
s. 7, subs. 3). (3) In a provided school, as has been mentioned above, 
no religious catechism or religious formulary which is distinctive of any 
particular denomination may be taught {ibid. s. 14, subs. 2). This is 
still in force. (4) Under sec. 7, sub-sec. 1, of the same Act, it is not to 
be required in any public elementary school as a condition of a child 
being admitted into or continuing in the school, that he shall attend or 
abstain from attending any Sunday school or place of religious worship, 
or that he shall attend at any religious observance or instruction in the 
school, or attend school on any day exclusively set apart for religious 
observance by the religious body to which his parent belongs. This 
is still law. Ascension Day is a day so exclusively set apart by the 
Church of England {Bell v. Graham, 1907, 23 T. L. E. 435). (5) The 
time for any religious observance or instruction must be either at the 
beginning or end of the meeting of the school, and must be inserted in a 
time-table approved by the Education Department and kept permanently 
and conspicuously affixed in every schoolroom {ibid. s. 7, subs. 2). This 
is still law (see Blencoioe v. Novthants C. C, above). (6) Lastly {ibid. s. 
76), for inspection " as well in respect of religious as of other subjects " by 
an inspector other than one of His Majesty's inspectors, the managers 
of a non-provided school may fix a day or days not exceeding two in 
any one year. Fourteen days' notice of such inspection must be affixed 
in the school, and no scholar who has been withdrawn from religious 
instruction is to be required to attend on any such day. 

{E) Existing Lata of Elementary and Higher Education and the Educa- 
tion Act, 1902. — The way having been cleared by the passing of the 
Board of Education Act, 1899, 62 & 63 Vict. c. 33, and the constitution 
of an adequate central authority (see tit. Board of Education), a 
further great stride in the work of co-ordinating and developing educa- 
tion of all grades was made in 1902. By the Act of that year (7 Edw. vii. 
vol. v. 5 



66 EDUCATION 

c. 42) a complete revolution was effected in the control of, and provision 
for, education in this country; and for the first time in our history 
educational opportunity is secured on one comprehensive system, and all 
grades of education — elementary, secondary, commercial, and technical — 
are treated on similar lines, and subjected, though in varying degrees, to 
imiform control. Whatever the opinions held as to the sections of the 
Act of 1902 dealing with religious education and the voluntary (now to 
to be called non-provided) schools, the local government provisions of 
the Act have generally been held to have been laid down on sound lines. 

1. Authorities. — The Act creates a new local government entity 
called a "Local Education Authority." Of this the normal type is 
the County Council in the counties, and the council of the county 
borough with a population of over 50,000, as defined by the Local 
Government Act, 1888, in such county boroughs. At the passing of the 
Act these numbered 61 and 69 respectively. In addition there are 
certain local education autliorities having powers under Part III. of the 
Act, i.e. as to elementary education alone; these are the non-county 
boroughs with a population of over 10,000 at the time of the passing 
of the Act (see sec. 23 (8)) ; and the urban districts with a population 
of over 20,000 at the same period (s. 1). These numbered respec- 
tively 137 and 64 when the Act was passed, making a grand total of 
local education authorities of 332. In the smaller boroughs and urban 
districts just alluded to there are in consequence two local education 
authorities — the borough or district council for elementary education, and 
the county council for secondary education. In addition to the above 
" local education authorities," there are some other bodies with powers 
under the Act; e.g. boroughs below 10,000, or urban districts below 
20,000, can aid the supply of secondary education to the extent of a Id. 
rate (s. 3) ; but they are not " local education authorities." The councils 
are to act tlirough statutory education committees appointed by scheme 
approved by the Board of Education under sec. 17. All matters stand 
referred to the education committee, and the council may delegate to it 
all its powers save those of raising a rate or borrowing money. 

Great latitude is allowed by the Act in framing schemes, only two 
necessary requirements being laid down, viz. that a majority of the 
comndttee must be members of the council, and at least one woman 
from outside must be co-opted. At the same time the section suggests 
the advisability of co-option to a considerable extent at the nomination 
or recommendation of outside bodies of persons of experience in educa- 
tion, and of persons acquainted with the needs of various kinds of schools. 
♦Separate committees may be provided for separate areas. 

2. Control and Management. — These words rvin through the Act, and 
are of great importance ; at the same time there is no precise definition 
of their meaning contained in the Act itself. Generally* speaking, the 
L. E. A. has *' control," which means that it is responsible, that it has to 
provide the necessary money from the rates, and must settle questions 
of principle ; while " management " means responsibility for details — not 
for finance or matters of principle. 

So far as elementary schools are concerned, the Act provides for the 
creation of bodies of managers; in the case of the L. E. A.s' own 
schools — now called provided schools — a difference is to be noted; in 
boroughs or urban districts the L. E. A. may appoint managers for 
provided schools if it pleases, but in the case of counties every provided 
public elementary school must have a body of managers. 



EDUCATIOlSr 67 

For the non-provided or voluntary schools, in all cases the Act sets 

lip a body of managers chosen as follows : — Four, called foundation 

I managers, by the subscribers or others representing the interest of those 

I to wliom the buildings, whether in trust or otherwise, belong ; and two 

I representing the public and appointed by the L. E. A. and the minor 

I local authority as defined in sec. 6 (2) respectively. In one special 

I case the managers of non-provided schools have powers under their 

I management and are expressly given control, viz. in the case of religious 

instruction, which, as regards its character, is to be in accordance with 

the trust-deed and under the control of the managers (s. 7 (6)). It 

i has been argued in Blencowe v. Northants C. C, 1907, 23 T. L. K. 319, 

that this control would entitle managers to take children to churcli 

I for religious instruction, but the point was not determined. The exact 

extent of the managers' powers of management are determined by sec. 9 

in the case of the non-provided schools ; in the case of provided schools 

I the powers delegated to managers will be such as the L. E. A. may 

, determine. 

( Grades of Education. — Part II. of the Act (ss. 2-4 inclusive) deals 

•' with the provision of secondary education, or education other than 

elementary, and Part III. (ss. 5-16 inclusive) with tliat of elementary 

education. There is no clear definition contained in the Act of what is 

elementary and what secondary education ; and the decision in K v. 

Cockerton, decided in 1901, is still the authority on the subject ([1901] 

[ 1 K. B. 322, 726). The points decided by that judgment shortly were, 

; that Parliament in 1870 had not defined rightly what elementary 

education was ; " the three E's " were probably intended as a minimum, 

the maximum must vary according to the requirements of the time ; and 

for this variation Parliament had made provision by the machinery of 

I the code ; the limits of what was permissible as elementary education 

depended on two factors — it must be for children, i.e. up to sixteen or 

seventeen ; the Act of 1902 now adopts this rule and fixes the age limit 

definitely at sixteen (s. 22 (21)) ; and secondly, it must be such as the 

, code prescribes. If the principal portion of the education given in a 

pubhc elementary school is elementary, the remainder of the curriculum 

may go beyond this limit (see sec. 3 of the Act of 1870). 

Accepting this definition. Part II. of the Act of 1902 lays down that 
with regard to education other than elementary the L. E. A. must consider 
the needs of its area, and shall then take such steps as seem desirable, 
after consultation with the Board of Education, (a) to supply or aid the 
supply of such education ; and (b) to co-ordinate all forms of education ; 
for this purpose they rmist apply all money coming into their hands 
under the Local Taxation (Customs and Excise) Act, 1890, usually 
known as the " whisky money," and they may in addition levy a rate for 
the same object. In the case of the counties this rate is limited to 
2d.; in the case of the county boroughs there is no such limit. As 
already mentioned, smaller boroughs and districts may also levy a 
concurrent Id. rate for a like object (s. 3). Provision is made for 
\ securing religious liberty under a conscience clause (s. 4) in the case of 
i any school or institution aided by the L. E. A. 

j There is nothing in the Act to prevent the L. E. A. making a grant, 
I if they see fit, in aid of private secondary schools run for profit. 
} Part III. contains the provisions as to elementary education. All 
: the powers of the school board and school attendance committees are 
( transferred to the L. E. A., together with all their property as from the 



68 EDUCATION 

" appointed day," i.e. the day when the Act came into force, which might 
vary in diilerent places, according to the directions of the Board (s. 27). 
No express deed or other act of transfer was necessary to vest the 
property (Sched. II. (i.), and Coiyoration of Oldham v. Bank of Ewjland, 
[1904] 2 Ch. 716 ; but cf. Morton v. Bank of England, [1904] 1 Ch. 664). 
School boards and attendance committees are abolished (s. 5). As to 
the non-provided schools, public authority is for the first time made 
responsible to apply rates for their support so far as secular instruction 
goes (s. 5). The L. E. A. are to maintain and keep efficient all public 
elementary schools {i.e. both what were called voluntary and board 
schools) within their area which are necessary, and have control of all 
expenditure required for that purpose, but subject to conditions in the 
case of the non-provided or voluntary schools, with regard to which a 
highly artificial division of powers is set up by sec. 7. These conditions 
are permissive, not statutory: on their non-fulfilment the penalty is 
that the school will cease to be maintained as, or to be, a public 
elementary school (see Young v. CiUlibert, [1906] 1 Ch. 451). The 
managers are to appoint the teachers, and can dismiss them on religious 
srrounds. And the teachers' contract is still with the managers, thouc^h 
the hand to pay is that of the L. E. A. {Crocker v. Mayor of Plymouth,, 
[1906] 1 K. B. 494 ; R v. West Riding County Council, [1906] 2 K. B. 676 
C. A., [1907] A. C. 29). But the L. E. A. must consent to the appoint- 
ment of the teacher, though they may not refuse consent save on educa- 
tional {i.e. non-religious) grounds, and to the dismissal save when that 
is determined on purely religious grounds (see Jones v. Hughes, [1905] 
1 Ch. 180). The managers must also carry out any directions of the 
L. E. A. as to secular instruction. It appears that a requirement that 
female teachers shall be unmarried will be such a " direction as to 
secular instruction " {Crocker v. Mayor of Plymouth, cited above) ; and a 
direction may still l3e a direction as to secular instruction though 
incidentally it affects the time or details of religious instruction {Bleu- 
cmce v. Northaids County Council, cited above). In R. v. West Riding 
County Coimdl, the West Riding County Council claimed that they were 
not liable under the section to "maintain and keep efficient" non- 
provided schools as a whole, that they were only liable for that 
portion of the school course and that portion of the teacher's salary 
that went for secular instruction, as that was the only portion of the 
curriculum that they could inspect (see s. 7 (1) h); they could not 
" keep efficient " what they could not inspect. After considerable 
difference of judicial opinion in the Divisional Court and Court 
of Appeal, the House of Lords finally held that the words "main- 
tain" and "keep efficient" were not coterminous, that the L. E. A. 
were bound in every case to maintain the non-provided school as a 
whole, though they could only inspect the secular instruction. The Bill 
of 1906, intended to remedy this and other alleged defects in the Act of 
1902, failed to pass into law. 

Other clauses of sec. 7 are of importance: the managers are to 
provide the schoolhouse in the case of non-provided schools free of 
charge, and are to keep the school in repair and make reasonable 
alterations and improvements ; })ut the L. E. A. are to make good weai 
and tear ; the L. E. A. may also have the use of the school premises foi 
three evenings a week for educational work. The L. E. A. are to make 
good damage done to school furniture during these three evenings, anc 
out of school hours (s. 7 (2)). Any disputes between managers and th( 



EDUCATION, BOARD OF 69 

L. E. A. are to be settled by the board (s. 7 (3)) ; this provision ousts the 
jurisdiction of the Courts {Blencowe v. Northants Couivty Council, cited 
above). The six managers set up for provided schools are to take 
the place, for purposes of management under the Act, of managers 
constituted under any deed (see hereon Jones v. Hnghes, cited above). 

Sec. 8 deals with the erection of new schools, which may be provided 
either by the L. E. A., or by private persons, e.g. a denominational body 
of trustees. The board has the power to decide if such a new school is 
necessary (s. 9); if an existing school has thirty scholars, the board 
cannot hold it unnecessary (s. 9). 

Sec. 10 provides for a new parliamentary aid grant in place of that 
secured under the Voluntary Schools Act, 1897, and under sec. 97 of 
the Elementary Education Act, 1870, as amended by the Elementary 
Education Act, 1897, and above referred to. 

Sec. 11 gives power to the Board by scheme to so far remodel the 
trust-deed as to provide for the election of the four foundation managers 
ill such non-provided school. Schemes were at once made following 
(lue or two general types for all such schools. By sec. 12 groups of 
managers may be formed ; and by sec. 13 endowments for elementary 
education are to be divided save in the cases where trustees have a 
discretion ; if they have not, the Board are to make an order providing 
for payment to the L. E. A. of such portion of the income as should 
properly go for those purposes for which the L. E. A. are responsible. 
In 1903 the Act of 1902, which did not originally apply to London, 
was, by 3 Edw. vii. c. 24, extended, but with modifications, to the 
^letropolis. The chief difference is that in the selection of the managers 
of non-provided schools, the L. E. A., i.e. the London County Council, 
only selects one-third, and the borough councils select two-thirds ; at 
least one-third of such non-provided managers are in London to be 
women. 

Such in outline are the provisions of the Acts of 1902 and 1903, 
which have revolutionised the law of English education. Since that date 
no great amending Acts have been placed on the Statute Book ; however, 
two more recent Acts call for notice. The Education (Local Authority 
Default) Act, 1904, 4 Edw. vii. c. 18, provides a means of bringing 
pressure to bear on defaulting L. E. A.s other than mandamus. The 
Board may recognise persons as managers if the L. E. A. will not appoint 
them, and may deduct from the parliamentary grant due to the L. E. A. 
any sums which the Board pays to managers on account of the L. E. A. in 
question. By the Education (Provision of Meals) Act, 1907, 6 Edw. vil. 
c. 57, local authorities may aid school canteen committees in the provision 
of meals for children attending any public elementary school (s. 1), and 
may recover the cost, or such portion of it as they see fit to charge the 
parent with, from the parent sunnnarily as a civil debt (s. 3). The 
failure of the parent to pay is not to work a disfranchisement (s. 4). 

[AiUhorities. — Barlow and Macan, Education Acts, Last Revised 
Edition, 1903; Jones and Sykes, Laiv of Public Education, Second 
Edition, 1904.] 

Education, Board of. — Prior to 1899 no central authority 
or department existed in England charged with the supervision of all 
education up to university standard. Such Government supervision as 
was exercised was in the hands of two departments, but the arrangement 
was unsatisfactory and incomplete; on the one hand, the powers and 



70 EELS 

duties of the two departments overlapped, while, on the other hand, the 
departments did not between them cover anything like the whole ground. 
This central authority was under the control of the Lords of the Com- 
mittee of the Privy Council on Education, and in theory comprised one 
linked body, but in fact consisted of two separate departments, viz. (a) 
the Education Department, which came into existence by Order in 
Council in 1856 ; this was quartered at Whitehall, and administered the 
parliamentary grant for elementary education, laying down the conditions 
for its administration in the Code issued annually in pursuance of the 
provisions of sec. 97 of the Elementary Education Act, 1870 ; and (h) tlie 
Science and Art Department at South Kensington, incorporated by Eoyal 
Charter in 1864, having a separate habitat at South Kensington, with a 
separate staff. South Kensington issued a Directory, dealing mainly 
with science and art subjects, i.e. a much more limited area of study 
than that of the Whitehall Code, but the scheme of the Directory was 
more advanced than that of the Code, reaching up to university 
standard. See the judgment of Wills, J., in B. v. Cockerton, [1901] 1 
K. B. p. 322. By the Board of Education Act, 1899, 62 & 63 Vict. c. 33, 
a Board is set up as from April 1, 1900, charged with the superintendence 
of " matters relating to education " in England and Wales ; it consists of 
a President and of the Lord President of the Council (unless he be also 
President of the Board), the five Principal Secretaries of State, the First 
Commissioner of the Treasury, and the Chancellor of the Exchequer 
(s. 1). The Board of Education takes the place of the Department 
(including the Science and Art Department at South Kensington), and 
all enactments and documents are to be construed accordingly (s. 2 (i.)). 
Power is given by Order in Council to transfer powers of the Charity 
Conmiissioners, or of the Board of Agriculture, relating to education to 
the Board, and by a series of Orders in Council, dated respectively 
August 7, 1900, July 24, 1901, and August 11, 1902, most of the powers 
of the Charity Commissioners relating to educational charities have now 
been so transferred to the Board of Education. 

The Board are given power to inspect secondary schools "by any 
university or other organisation " (s. 3), but schools established under 
the Welsh Intermediate Education Act, 1899, are to remain subject to 
the inspection of the Central Welsh Board. 

Power is also given by Order in Council to set up a Consultative 
Committee for the purpose of framing regulations for a register of 
teachers, and to advise the Board generally on matters referred to it. 
A Consultative Committee of eigliteen has accordingly been set up by 
Order in Council of August 7, 1900, and regulations laid down for con- 
stituting a register of teachers by Order in Council dat^d March 6, 1903. 
In the Education Bill brought before Parliament in 1906 it was proposed 
to abolish the register of teachers altogether. , 

[Authorities. — Barlow and Macan, Education Ads, Second Eevised 
Edition, 1903; Jones and Sykes, Lav: of Pnhlic Ediicatimi, Second 
Edition.] 

Eels. — Tlie eel was supposed by the judges {Price v. Bradley, 1885, 
16 Q. B. D. 148) to be a fresh-water fish within the Act of 1878, 41 & 
42 Vict. 0. 39, 8. 11, but Parliament in 1886 declared this opinion to be 
erroneous (49 & 50 Vict. c. 2), subject to a proviso that the Act should 
not legalise angling for eels in the close season, 15th March to 15th June, 
except by leave of the owner of the fishing, or the conservators, if any, 



EGYPT 71 

of the Fishery District. The object of the proviso seems to be to pre- 
vent anglers from making eel-fishing an excuse for angling in close 
time ; but if eels are not fresh-water fish, there seems no direct prohibi- 
tion on catching them in any way in close time. In salmon rivers, 
l^askets, nets, traps, or devices for catching eels must not be set between 
1st January and 24th June, both inclusive (36 & 37 Vict. o. 71, s. 15). 
See also 39 & 40 Vict. c. 34. 

Effect — Effects. ^See Stroud, Jucl. Did. ; and Will ; Judicial 

Glossary. 

Egg's. — See Birds; Game; and as to seizure of rotten eggs in 
London and elsewhere, see Public Health. 

Egypt. — Constitutional History. — Egypt, which, excluding the 
Anglo -Egyptian Sudan (see Sudan), embraces an area of 400,000 
square miles, is a tributary state of the Ottoman Empire. 

It was formerly an integral part of that Empire, but since 1811, 
when the then Ottoman " Vali " (or Viceroy) made himself master of 
the country, has gradually become (save for tribute) independent of the 
Porte. In 1867 the title of Khedive was conferred on the Vali. 

The history of the government of the country from the conquest by 
the Caliphs in 638 to 1870, of the firmans, and of the treaties affecting 
the relations between the Khedive and the Porte, was reviewed at length 
l)y Sir Eobert Phillimore in The ClmrUeli (May 7, 1873) (L. E. 4 Ad. 
& EccL, p. 59), where the Khedive was held not to be entitled to 
the privilege of a sovereign prince. By firman of June 8, 1873 (sub- 
sequent to that case), the Porte granted to the Khedive the right,, 
previously withheld, of concluding commercial treaties with foreign 
powers and of maintaining armies, "La souverainete exterieure n'est 
autre chose que I'independence de I'Etat vis a vis des autres Etats." 
But it is to be observed that, by Article 10 of the Statute of Judicial 
Organisation governing the Mixed Tribunals, he is expressly declared to 
be subject to the jurisdiction of those Courts. 

By firmans of 1872 (Hertslet's Treaties, vol. xiv. p. 1027) the 
Ottoman Sultan removed the restrictions imposed by firman of 1869 on 
the Khedive as to the issuing of foreign loans. The debt of Egypt was 
in 1863 four million pounds sterling, by 1879 it had become a hundred 
millions. 

In 1876 British and French Comptrollers of Finance were appointed ; 
after various changes this dual control was in 1879 revived with enlarged 
powers. 

In 1882, in consequence of a military rebellion, England intervened, 
occupied Egypt, and, unaided by France, restored the Khedivial authority. 

]>y Khedivial Decree of May 1, 1883 the dual control by England 
and France was abolished, and in the place thereof an English Financial 
Adviser appointed. 

In 1885, by the Convention of London (Hertslet's Treaties, vol. xvii. 
p. 349) an international financial settlement was concluded. The succeed- 
ing years saw various judicial and internal reforms, and at length by the 
Anglo-French Agreement of April 8, 1904, France recognised the pre- 
dominant position of Great Britain in Egypt, and by Khedivial Decree 
tlie functions of the Casse de la Dette were restricted to assuring the 
payment of interest. 



72 EGYPT 

[England in Egypt, by Lord Milner (1893); The Making of Modern 
Egypt, Sir Auckland Colvin (1906).] 

Existing Constitution. — Under the Khedivial law of 1883 there is a 
Legislative Council, whose functions are consultative, and which cannot 
initiate legislation, and a General Assembly, consisting of the Council 
plus the six ministers and forty-six popularly elected members. This 
assembly has no legislative functions, but it has a veto on any neio land, 
or direct, taxation. 

The 13ritish Financial Adviser has a right to a seat in the Council of 
Ministers, and no financial decision can be arrived at without his advice. 
Tliere is also a British Adviser attached to the Ministry of the Interior, 
and similar British Advisers are attached to the Ministries of Justice, 
Public Works, and Public Instruction. 

Judicial Matters. — Until 1876 British judicial jurisdiction in Egypt 
was regulated by the Ottoman Orders in Council, but in that year (see 
St. It. & 0., Eev., 1st. edit., vol. iii. p. 690) the operation of those Orders 
was suspended as regards matters within the jurisdiction of the " Mixed 
Tribunals." That suspension has been continued by art. 12 of the 
Ottoman Order in Council, 1899 (St.K. & 0., Eev. 1904, vol. v., "Foreign 
Jurisdiction," p. 742), but as regards matters not coming within the 
Mixed Tribunals' jurisdiction, H.B.M.'s Supreme Provincial and Local 
Consular Courts exercise in Egypt the like jurisdiction as in other parts 
of the Ottoman dominions (see the articles Foreign Jurisdiction; 
Ottoman Dominions). 

The Ottoman Order of 1899 does not (art. 2) extend to the Anglo- 
Egyptian Sudan, as to the Judicial Organisation of, and Legislation for, 
which see Sudan. Under the Ottoman Order in Council, 1905 (St. Pt. & 
O., 1905, p. 121), the Secretary of State appoints a Crown Prosecutor for 
Egypt. 

His Majesty's Agent for Egypt has power by " King's Kegulations " 
(1899 Order, art. 163; 1905 Order, art. 4) to legislate for British 
subjects in Egypt in respect of the matters mentioned in the Order 
of 1899. 

The procedure and fees of the British Consular Court in Egypt are 
regulated by liules of March 6, 1900 (Hertslet's Treaties, vol. xxi. p. 1006), 
issued under art. 136 of the 1899 Order in Council. 

The present judicial organisation and law of Egypt are dealt with in 
the succeeding article, Egypt — Legislation and Judicial Organisa- 
tion, ^/.-z;. 

Application of Imperial Acts. — The British Regulations for prevent- 
ing Collisions at Sea apply to Egyptian ships when outside British 
waters (St. R. & O., Rev., vol. viii., "Mercliant Shipping," p. 285). 

The Treaty of August 4, 1877, with the Khedivial Government has 
been declared to be a Slave Trade Treaty within the Slav^ Trade (East 
African Courts) Act, 1873, ibid. vol. xi., " Slave Trade," p. 48, and by 42 
& 43 Vict. c. 38, 8. 3, doubts as to the application of the former Act to 
Egypt were removed (see Slave Trade). As to matters affecting the 
Ottoman Dominions generally, see that article. 



EGYPT— LEGISLATION AND JUDICIAL OEGANISATION 73 



Egypt— Legislation and Judicial Organisa- 
tion. 

TABLE OF CONTENTS. 



I. Legislation — 




(2) Criminal Courts — 


A. Legislation Applicable to 




(a) Mixed Tribunals 


Foreigners. 




(i.) Assize Court 


(1) Civil— 




(ii.) Correctional Tribunal 


(a) Mixed Codes . 


73 


for Misdemeanors 


(b) Decrees approved by the 




(iii.) Police Court 


Treaty Powers 


73 


(b) Consular Courts . . 


(c) National Legislation in 




B. Courts having Jurisdiction over 


Questions of Personal 




Natives. 


Status .... 


74 


(1) Civil Courts— 


(2) Criminal — 




(i.) Summary Courts . 


(a) National Legislation 
(6) Mixed Legislation . 


74 


(ii.) Central tribunals 


74 


(iii.) Court of Appeal . 


(i.) Crimes 


74 


(2) Criminal Courts — 


(ii.) Misdemeanors . 


74 


(i.) Markaz Tribunals 


(iii.) Police Offences (Con- 




(ii.) Summary Courts 


traventions) 


74 


(iii.) Central tribunals 


B. Legislation Applicable to 




(iv.) Court of Appeal and 


Natives. 




Assize Courts , 


(a) Native Codes . 


74 


(v.) Court of Cassation 


(h) Khedivial Decrees in 




(3) Religious Courts — 


General . . . . 


75 


(i.) Mehkemehs . 


(c) Law of Personal Status . 


75 


(a) District Mehkemehs . 


IL Judicial Organisation — 




{/3) Central Mehkemehs . 
(y) Supreme Mehkemeh . 


A. Courts having Jurisdiction 




over Foreigners. 




(ii.) Native Christian and Jew- 
ish Jurisdictions 


(1) Civil Courts— 




(a) Mixed Tribunals . 


75 


C. Parquet. 

(1) Mixed Tribunals . 

(2) Native Tribunals . 


(i.) Summary Courts 
(ii.) Tribunals of First 


76 


Instance . 


76 


D. Committee of Judicial Sur- 


(iii.) Court of Appeal 


77 


veillance . . . . • 


(b) Consular Courts 


77 




I. 


Legi 


3LATI0N. 



77 
78 

78 
78 
78 



78 
79 
79 

79 

80 

80 

80 
81 

81 
81 
81 
81 

81 

82 

82 

82 



(1) Civil. 



A. Legislation Applicable to Foreigiiers. 



(a) Mixed Codes governing disputes between foreigners and natives 
or foreigners of different nationalities, or even foreigners of the same 
nationality in questions relating to land. 

These Codes (Civil, Commercial, Maritime, and Civil Procedure) are 
based on the French Codes, but differ from the latter in many important 
respects. The Civil Code, for example, does not contain any of the 
books of the French Code treating of family law — marriage, filiation, or 
succession (except two articles) and similar topics, these matters being 
outside the jurisdiction of the Mixed Courts. On the other hand, this 
Code contains several provisions inserted in order to protect European 
creditors, which are, of course, absent from its French prototype (c/. 
Mixed Civil Code, arts. 107, 176, and 197). 

Notwithstanding, however, many divergencies, the Egyptian Codes 
l)ear the stamp of their French origin strongly impressed upon them, 
and F'rench case law and commentaries are largely used in connection 
with their interpretation. 

(h) Decrees approved hy the Treaty Powers. — Decrees are promulgated 



74 EGYPT— LEGISLATION AND JUDICIAL ORGANISATION 

from time to time, amending or supplementing the Codes which form the 
basis of the Egyptian legislation applicable to foreigners. Such decrees, 
however, are only applied by the Mixed Courts when they have been 
approved by the Treaty Powers. By " Treaty Powers " is meant, in this 
connection, the foreign Powers which adhered to the judicial reforms 
effected in Egypt in 1875 (vide infra, sub "Judicial Organisation"). 
Legislation of this kind therefore requires the unanimous assent of 
fourteen foreign Powers, and it will thus be easily understood that even 
the most urgent and desirable reforms are not introduced without great 
difficulty. 

(c) National LegidaUon in Questions of Personal Status. — Questions 
touching the personal status of foreigners are governed by the laws of 
their respective countries, and when an action before the Mixed Courts 
involves the incidental decision of such a question, these tribunals 
suspend their judgment until such question has been decided by the 
competent authority. 

(2) CHminal. 

(a) National Legislation, — The offences committed by foreigners in 
Egypt are, as a general rule, tried and punished under the penal legisla- 
tion of their respective countries. 

The principal exceptions to this rule are mentioned under (b). 

(b) Mixed Legislation. — Egyptian legislation is applicable to foreigners 
in a limited number of cases. 

(i.) Crimes (roughly, felonies). — In this category of offences the pro- 
visions of the Mixed Codes are of very limited application, and have 
remained almost a dead letter. Crimes committed by or against officials 
of the Mixed Courts in the exercise of their functions may be cited as 
falling within the jurisdiction of these tribunals. 

(ii.) Misdemeanors. — As to these offences, the Mixed Penal Code, so 
far as it is in force, and notably its provisions as to offences connected 
with bankruptcy, are applicable to foreigners. The most common mis- 
demeanor, perhaps, after bankruptcy offences, is the misappropriation 
of goods under attachment. 

(iii.) Police Offc7ices (Contraventions). — All police offences committed 
by foreigners in Egypt are punished under the Mixed Tribunal Legisla- 
tion. Besides the offences of this nature punished under the Mixed 
Penal Code, a large number of regulations have been promulgated from 
time to time in which police penalties have been inserted. These 
regulations, issued in the form of Khedivial Decrees or Ministerial 
Orders, are submitted to the Mixed Court of Appeal, empowered under 
a Decree of 1889 promulgated with the assent of the Treaty Powers, to 
approve them on behalf of these Powers, though its right of disapproval 
is restricted to the exercise of certain specified powers/ When thus 
approved they become applicable to foreigners, and in case of theii 
breach the Mixed Police Courts apply the penalties provided. 

B, Legislation Applicable to Natives. 

(a) Native Codes. — These Codes, like the Mixed, are based on the 
French Codes, and like the former, do not contain the provisions of the 
French Codes relating to family law, etc., the Native Tribunals noi 
having jurisdiction in such matters. They are promulgated by Khedivial 
Decree. 



EGYPT— LEGISLATION AND JUDICIAL OPwGANISATION 



/o 



(b) Khedivial Decrees in General. — Egypt enjoyincr legislative autonomy 
under the Imperial Firmans, the Egyptian Government has the power 
to enact laws applicable to all persons, residing in the country, who are 
not immune from its jurisdiction under the capitulations, treaties, or 
usages. Such laws are enacted by Khedivial Decree — promulgated by 
H.H. the Khedive, on the proposition of the Minister of the Department 
interested, and with the consent of the Council of Ministers. 

Decrees which are of general public interest require to be submitted 
to the Legislative Council (composed partly of Government nominees and 
partly of delegates from the provincial Councils) before being promul- 
gated, but the powers of the Council are merely consultative, and its 
decisions do not bind the Government. 

With regard to Decrees creating taxes, however, the General Assembly 
(composed of the Ministers, the Legislative Council, and delegates from 
the towns and provinces) has wider powers, since no new tax (direct, 
real property, or personal) can be imposed without its consent. 

The General Assembly is also consulted in regard to certain other 
matters. 

(c) Lciio of Personal Status. — As explained above, the Civil Codes of 
the Native and Mixed Tribunals do not treat of questions of family 
law — marriage, iiliation, succession, etc. Just as questions regarding 
the personal status of foreigners are decided by their national tribunals 
(Consular Courts) according to their national legislation, so the same 
questions relating to natives are referred to their religious Courts and 
dealt with according to the rules of the religious community to which 
they belong. 

The bulk of the population is, of course, Mohammedan, and all 
questions concerning Mohammedan personal status are decided by the 
application of ^Mohammedan law% as interpreted by the Sheikhs of the 
Hanafite Kite. 

There is one matter of real statute which is governed by Moham- 
medan law, viz. " Wakfs " (which may be defined as charitable trusts 
of land, including family settlements, with an ultimate remainder in 
favour of charitable purposes). 

The native Christian and Jewish population of Egypt is, however, 
by no means inconsiderable, and the various sects have their own 
particular rules governing marriage and family life. It is to be ob- 
served, however, that the particular rules of any one sect can only be 
applied when all the parties to the case belong to that sect. In the 
contrary case, Mohammedan law becomes the common law for all. 
Indeed, in practice, Mohammedan law is the law usually applied in 
matters of succession since, unless all the parties to a case agree to 
submit the dispute to the tribunal of a particular Patriarchate, it must 
be decided by the Mohammedan religious Court, which, of course, 
applies Mohannnedan law. 

II. Judicial Organisation. 

A. Caicrts having Jurisdictio7i over Foreigner's, 

(1) Civil Courts. 

(a) Mixed Tribunals. — These Courts were instituted in 1875, under 
treaties entered into with fourteen foreign Powers, viz. America, 
(United States), Austria-Hungary, Belgium, Denmark, France, Germany, 



76 EGYPT— LEGISLATION AND JUDICIAL OKGANISATION 

Great Britain, Greece, Holland, Italy, Portugal, Kussia, Spain, Sweden 
and Norway, with a view to remedying the state of judicial anarchy 
which prevailed in Egypt at that time. They commenced working on 
the 1st of February 1876. 

The Courts are Egyptian and not international, as they are some- 
times erroneously styled ; justice is administered in the name of H.H. 
the Khedive ; the judges, European and native alike, are appointed by 
Khedivial Decree, and their judgments can only be enforced by the 
Egyptian authorities. 

All the Powers which adhered to the Judicial Eeforms in Egypt are 
represented on the Bench of these tribunals. Practically they have 
each two judges in the Lower Courts. The great Powers only, viz. 
America (United States), Austria-Hungary, France, Germany, Great 
Britain, Italy, and Kussia, have each one judge in the Court of Appeal ; 
but in order to bring the foreign judges up to the number required for 
the purpose of carrying on the work of the two Chambers into which 
the Court is divided, three judges belonging to smaller Powers have 
been given a seat on its Bench (Belgium, Greece, and Portugal). 

The Egyptian Government is empowered by law to select the candi- 
dates for the judicial posts which become vacant, and has then to consult 
the Ministry of Justice of the country to which the candidate belongs, 
as to his fitness for the post. 

On the civil side, the organisation of the Courts is as follows : — 

(i.) Summary Courts at Alexandria, Cairo, Mansourah, and 

Port Said, 
(ii.) Courts of First Instance at Alexandria, Cairo, and ]\Ian- 

sourah. 
(iii.) Court of Appeal at Alexandria. 

(i.) Summary Courts. — These Courts, in which a foreign judge sits 
alone, have jurisdiction in original suits — civil and commercial — where 
personalty only is involved, up to the value of £(E)100. In certain 
specified suits {e.g. claims for payment of rent and rescission of leases, 
where the annual rent does not exceed £(E)100) they have jurisdiction 
up to any sum. An appeal lies from their decisions in all these matters 
to the Court of First Instance whenever the value of the suit exceeds 
£(E)10. 

The Summary Courts have also jurisdiction in a category of suits 
called " possessory actions," in disputes relating to land boundaries and 
similar matters, provided the ownership of the property be not con- 
tested. An appeal lies from all their decisions in these matters, irre- 
spectively of the value of the matter in dispute, and is heard by the 
Court of Appeal. 

They may also hear and decide, under certain conditions and with- 
out appeal, cases which are voluntarily submitted to them by the parties* 

(ii.) Trihmials of First Listance. — These Courts are divided into 
two chambers, or more, if the amount of work renders it necessary. 
In any case, tliere must be a civil and commercial chamber, both becaust^ 
the composition of their respective benches is different, and because thtMi 
respective jurisdictions vary. 

The Civil Chamber is the more important of the two. It may be 
styled the Court of General Jurisdiction ; for it hears all original suits in 
whicli the law has not specifically given jurisdiction to the Summary <>r 
Commercial Courts. 



EGYPT— LEGISLATION AND JUDICIAL OEGAOTSATION 77 

In addition, it hears the appeals lodged against the decisions of the 
Smnmary Courts — whether in civil or commercial suits — except in those 
cases in which the appeal goes to the Court of Appeal. 

In case of difficulties arising during or incident to the execution of 
judgments — whether delivered by the Summary, Commercial, or Civil 
Court — the Civil Chamber alone is competent to deal with and settle 
such difficulties. 

The Civil Chamber is composed of five judges (three foreigners and 
two natives), and its decisions are arrived at by vote, judgment being 
given according to the view of the majority. When the judgment is 
pronounced, however, it is given as the judgment of the Court — the 
deliberations of its members being secret. 

The Commercial, like the Civil, Chamber is composed of five judges^ 
but with the addition of two merchants, one foreigner and one native^ 
who sit as assessors and have an equal vote in the deliberations with 
the judges themselves. The Commercial Chamber has no appeal juris- 
diction, and only hears original suits. It has jurisdiction in all com- 
mercial cases (including bankruptcy) which are not heard by the 
Summary Courts. 

(iii.) The Court of Appeal. — The Court of Appeal judges finally all 
cases in which the judgments of the Lower Courts are appealed against, 
with the exception of those appeals from the decisions of the Summary 
Courts which, as mentioned above, are heard by the Civil Chamber of 
the First Instance Courts. 

The Court of Appeal is divided into two chambers, consisting of 
eight judges each (five foreigners and three natives, under the presi- 
dency of a foreigner), and the work of the Court is distributed equally 
between the two chambers, neither of which has any special jurisdiction 
or powers. 

Under the Organic Decree of these Courts, an honorary President 
is appointed to each of them by the Government, but in reality they 
are presided over by one of the foreign judges, who is annually elected 
as Vice-President by his colleagues, foreign and native, assembled in 
general meeting. Another foreign judge is elected, in the same manner, 
as Deputy Vice-President (" Substitut ") and replaces the Vice-President 
in his absence. 

(h) Consular Courts. — Most foreign Powers have Consular represen- 
tatives in Egypt, and these Consulates have judicial powers. In civil 
and commercial matters they only decide disputes between their own 
nationals, that is, disputes in which no native or foreigner of another 
nationality is concerned. 

As regards questions of personal status, however, the Consular 
Courts have sole competence to decide any question arising, whether 
between foreigners of the same or of different nationalities, or between 
foreigners and natives. For example, in bankruptcy proceedings pending 
before the Mixed Tribunals, if a question should arise as to the separate 
estate of the bankrupt trader's wife, under her marriage settlement, or 
by reason of the provisions of her national law, such question would 
have to be decided by the Consular jurisdiction of the country to which 
tlie trader and his wife belonged, the mixed suit being suspended until 
this question were settled. 

(2) Criminal Courts. 

(a) Mixed Trihmals. 



78 EGYPT— LEGISLATION AND JUDICIAL ORGANISATION 

(i.) Assize Court, for the trial of crimes. — This Court is composed of 
three judges of the Court of Appeal (two European and one native), with 
twelve jurymen, six of whom are of the nationality of the accused if he 
desires it. It has, however, only sat once since the Courts commenced 
to work in 1876. 

(ii.) Correctional THhuiml for Misdemeanors. — This Court is composed 
of three judges (two foreigners and one native) assisted by four assessors 
(all Europeans if the accused is a foreigner, and half Europeans and half 
natives if the accused is a native). It has jurisdiction to try misde- 
meanors, and its decision is final as to the facts ; but an appeal may be 
made on points of law to the Court of Appeal, sitting as a Court of 
Cassation. 

It also sits as an appellate jurisdiction with the same composition to 
hear appeals from sentences of imprisonment pronounced by the Police 
Court {vide infra). 

(iii.) Police Court, consisting of a single judge (foreign), hears and 
tries all police offences committed by foreigners. If the sentence is one 
of imprisonment, an appeal lies to the Correctional Tribunal. In the 
contrary case there is no appeal on the facts, but an appeal may be made 
on points of law to the Court of Appeal, as in the case of the sentences 
of the Correctional Tribunal. 

(h) Consular Courts. — The criminal jurisdiction of the Consular 
Courts, each as regards its respective subjects and protected subjects, 
is general in character. It has been above observed that the criminal 
jurisdiction of the Mixed Tribunals is limited, on the one hand, to 
certain classes of offences {e.g. police and bankruptcy offences), and on 
the other to certain categories of persons {e.g. officials of the Courts). 
Outside these clearly defined limits all offences committed by foreigners 
are tried by the Consular Courts. The organisation and powers of 
these Courts naturally vary with the legislations of the different 
countries to which they belong. The most numerous foreign colony 
in Egypt is the Greek, and by far the largest number of crimes com- 
mitted by foreigners in Egypt are committed by Greeks. In consequence 
there are periodical Greek Assizes held in Alexandria for the trial of the 
more serious offences. The British colony, including a large number of 
Maltese, is also fairly numerous, and a judge of the Supreme Consular 
Court at Constantinople visits Egypt at intervals to try, with a jury, 
consisting of five British subjects, the cases committed for trial by the 
various Consular Courts. {Cf. Ottoman Order in Council, 1899, ss. 14, 
184 (3), etc.; Stat. II. & 0., llev. 1904, vol. v., "Foreign Jurisdiction," 
742). 

B. Courts having Jurisdiction over Natives. 
(1) Civil Courts. 

(i.) Summary Courts. — There are forty-four of these Courts scattered 
about the country — twenty-eight in Lower and sixteen in Upper Egypt. 
They deal with a very considerable proportion of all the civil and com- 
mercial suits coming within the jurisdiction of the Native Tribunals. 

They are single judge Courts, and have jurisdiction in all civil and 
commercial cases between natives, in which the value of the matter in 
dispute does not exceed £(E)100. In certain specified suits they have 
jurisdiction up to any amount. Their decisions in these matters are 



EGYPT— LEGISLATION AND JUDICIAL OEGANISATION 79 

liable to appeal when the value of the suit exceeds L.E. 20. Excep- 
tionally, in matters of real property, their decisions are appealable when 
the value of the suit exceeds £(E)10. 

In certain suits, notably possessory actions, suits concerning land 
boundaries and similar matters, in which they have an unlimited 
jurisdiction in first instance, all their decisions are appealable. 

These Courts may also hear and decide, under certain conditions 
and without appeal, any cases voluntarily submitted to them by tlie 
parties. 

(ii.) Central Tribunals. — There are seven of these Courts — four in 
Lower Egypt (Cairo, Alexandria, Tantah, and Zagazig), and three in 
Upper Egypt (Beni Suef, Assiout, and Keneh). 

One English judge is attached to each tribunal. , 

Their decisions are given by three judges, and judgment follows the 
view of the majority. The deliberations, however, are secret, and the 
judgments are pronounced as being the decision of the whole Court, as 
in the Mixed Tribunals (see above, p. 77). 

They hear all appeals lodged against the judgments of the Summary 
Courts, and their decision in these cases is final. 

Tlieir jurisdiction in first instance may be said to be general, as they 
hear and decide all cases in which jurisdiction is not conferred upon 
the Summary Courts. Their judgments in original suits are always 
subject to appeal. 

(iii.) Court of Ajypeal. — The jurisdiction of the Court of Appeal, on 
the civil side, consists in hearing and deciding appeals lodged against 
the judgments of the First Instance Courts. 

There are twenty-six judges in the Court of Appeal (ten European 
and sixteen native) besides the President, who is a native. The Vice- 
President of the Court is, at present, an Englishman. 

The decisions of the Court are given by three judges, and are based, 
like those of the Lower Courts, on the opinion of the majority. 



(2) Criminal Courts, 

(i.) Markaz Tribunals, 
(ii.) Summary Tribunals, 
(iii.) Central Tribunals, 
(iv.) Court of Appeal and Assize Courts. 
(v.) Court of Cassation. 

(i.) Markaz Tribunals. — These Courts, of which there is one in each 
ut' the one hundred odd Markazes (districts) or Kisms (sections) into 
which the provinces and cities of Egypt are divided, are of recent 
institution (1904). 

They were established for the purpose of trying petty offences in the 
districts where such offences were committed, thus saving accused 
persons and witnesses a journey to the nearest Summary Court, and 
also with a view of enabling the police, who have inquired into these 
petty offences, to conduct the prosecution, thereby avoiding the necessity 
of a fresh examination by the ordinary prosecuting official (member of 
the Parquet). 

Their jurisdiction is partly exclusive and partly concurrent with 
that of the Summary Courts. It is exclusive for tlie trial of police 
offences (with some exceptions), and it is concurrent for the police 



80 EGYPT— LEGISLATION AND JUDICIAL ORGANISATION 

offences excepted from their exclusive competence and for certain 
scheduled misdemeanors. 

The Markaz judge has power to inflict penalties up to £(E)2 fine 
and one month's imprisonment. When he considers that a mis- 
demeanor cannot be adequately punished within these limits, he sends 
the case on to the Parquet to be entered for trial before the Summary 
Court. 

The sentences of these Courts are liable to appeal in all cases of 
misdemeanor. In police offences the right of appeal is restricted. 

The Markaz Tribunal Law provides for a limited civil jurisdiction 
being given to these tribunals. Up to the present, however, such 
jurisdiction has only been granted to five of them, so that the Markaz 
Tribunals can scarcely be reckoned yet among the regular civil Courts. 

(ii.) Summary Trilmnals. — These Tribunals, which are also single 
judge Courts, have concurrent jurisdiction with the Markaz judge for 
the trial of the offences above mentioned, and exclusive jurisdiction as 
regards all other misdemeanors {i.e. offences punishable with fine or 
imprisonment up to three years). 

The rules as to appeal are the same for the Summary as for the 
Markaz Courts. 

(iii.) Central Tribunals. — These Courts, though described in the law 
as First Instance Courts, have, on the criminal side, no cases in first 
instance to try, since Assize Courts were instituted. They are, roughly 
speaking, the general appellate jurisdiction for misdemeanors. They 
also hear appeals from sentences in police offences, where appeal is 
allowed, except those specified cases in which the appeal goes up to th' 
Court of Appeal in Cairo. 

The decisions of these Courts on appeal are given by three judges, 
and are final as judgments on the facts. They may, however, !>• 
attacked on points of law by application to the Court of Cassation, a 
to which, see infra. 

(iv.) Court of Appeal and Assize Courts. — On the criminal side, thi> 
Court's jurisdiction, as an Appeal Court proper, has been practicall}' 
abolished by the institution of Assize Courts, which try offences classed 
in the Penal Code as " crimes " (corresponding roughly to " felonies " in 
English law) without appeal on the facts. As, however, the Assize 
Court judges are all judges of the Court of Appeal, and as the President 
of this Court has the general surveillance of the working of the Assizes. 
the Assize Courts may be considered as a branch of the Court of 
Appeal. 

The only criminal appeals, properly so called, still heard by the 
Court of Appeal are those relating to certain specified police offence- 
which the law requires to be sent up to the Court of Appeal, instead ut' 
being dealt with by the Central Tribunals, as is ordinarilv the case. 

The judgments in these cases are given by three judges. 

The system of Assizes is of quite recent introduction into tlic 
country. The law was promulgated in 1905 (January), and the system 
was inaugurated in Lower Egypt in April of the same year. On 
January 1, 1906, the system was generalised and extended to the wliole 
country. 

Under this system a Bench of three judges of the Court of Appeal 
holds monthly Assizes in each of the towns where a Eirst Instance 
Tribunal is establislied, and tries all the crimes (felonies) committed 
in the territorial area of such tribunal. 



EGYPT— LEGISLATION AND JUDICIAL OEGANISATION 81 

I Before being sent up for trial at the Assizes, each case is submitted 
by the Parquet to a committing magistrate, called the " juge de renvoi/' 
who may commit (on the original or an amended indictment), discharge 
the accused, or order further investigation. 

The sentence of the Assize Court is final, and there is no appeal on 
the facts. As explained below, however, an appeal in cassation may be 
made in certain circumstances. 

The principal advantages of the Assize Court system as opposed to 
the old system of judgment by a central tribunal, with appeal to the 
Cairo Court of Appeal, are : — (1) Promptitude in the disposal of cases, 

, crimes being now punished within about two months of their com- 
mission, whereas formerly it took about eight months before they were 
finally disposed of ; (2) the cases are heard and decided in or near the 
locality where the crime was committed ; and (3) the judges in whose 
hands lies the final decision hear the witnesses, whereas, as a rule, 

1 under the old system, the Court of Appeal judged solely on the papers 
and did not have the witnesses before it. 

(v.) Cmci't of Cassation. — Five judges of the Court of Appeal sit as 
a Court of Cassation and hear applications for setting aside judgments 
of criminal courts against which there is no appeal, or appeal judgments, 
on the ground of violation or wrongful application of the law, or of the 
omission, in the proceedings, of substantial formalities provided by the 
law. 

(3) Eeligious Courts. 

(i.) Mehhcmiehs. — As above stated, all questions of personal status^ 
relating to Mohammedans, are governed by Mohammedan law, as are 
, also questions relating to Wakfs. 

i This law is applied by the Mehkemehs, or Mohammedan Eeligious 
Courts. 

These Courts are divided into : — 
(a) District Mehkemehs. 
{P) Central Mehkemehs. 
(y) Supreme Mehkemeh. 

There is a District MeJikemeh in each district throughout the country, 
and it has jurisdiction in most questions of family law. In successions 
it has jurisdiction only in cases of estates of small value (up to £(E)25), 
and it has no jurisdiction in the matter of " Wakfs." 

All its judgments may be appealed against to the Central 
^lehkemeh. 

A Central Mehkemeh is established in the chief town of each province, 

: as well as in the towns which form Governorates. These Mehkemehs 

heai-, in first instance, all cases not within the jurisdiction of the 

District Mehkemehs, and the appeals lodged against the judgments of 

the latter. Its judgments are pronounced by three Kadis. 

All the first instance judgments of the Central Mehkemehs are 

I liable to appeal, which is heard by the Supreme Mehkemeh in Cairo. 

,' The judgments of the latter are given by three Kadis, of whom one 

is the Grand Kadi of Egypt or his substitute. The Grand Kadi is 

' appointed by H.M. the Sultan of Turkey. 

I (ii.) Native Christian and Jeiuish Jiirisdictions. — All the various 
'Christian and Jewish sects which have any considerable number of 
I adherents in Egypt have each a Patriarchate, Council, or some other 
!' VOL. V. 6 



82 EGYPT— LEGISLATION AND JUDICIAL OKGANISATION 

authority which is invested with certain judicial powers, though it is 
very difficult to determine the exact constitution and precise jurisdiction 
of many of them. The Egyptian Government has practically no con- 
trol over these bodies, and there are constant complaints concerning 
most of them. 

The jurisdiction, however, of each of them is strictly limited to 
questions of personal status arising among members of their own com- 
munity, and in matters of succession their jurisdiction is of an arbitral 
character, the consent of all the parties being necessary before a case 
can be submitted to them. 

C. Parquet, 

(1) Mixed Tribunals. — The Parquet, or public prosecuting Depart- 
ment, is under the direction of a European Procureur General (at 
present a Norwegian). He is assisted by a number of native substitutes. 
The Parquet conducts the prosecution of criminal cases falling within 
the jurisdiction of the Mixed Courts, the Procureur-General or one of 
his substitutes appearing before the Criminal Courts as State Eepre- 
sentative. 

The Parquet is also represented before the Civil and Commercial 
Courts, and is technically heard in every case. In practice, however, 
the representative of the Parquet only addresses the Court in cases 
which are of some public interest. 

The papers of certain classes of civil and commercial cases are 
required by law to be communicated to the Parquet before the hearing. 

(2) Native Trihimals. — The Parquet of the Native Tribunals is 
organised under the direction of an English Procureur General, who is 
assisted at headquarters by an Avocat-General and a staff of English 
and native inspectors. 

At each of the Central Tribunals there is a " Chef du Parquet " and 
at the chief town of each of the provinces there is a deputy. These 
officers are assisted by a sufficient number of substitutes, who inquire 
into crimes and prosecute before the various Criminal Courts. As 
above stated, however, the police conduct the prosecution before the 
Markaz Courts. The Parquet has the general supervision of these 
prosecutions, may withdraw a case from the police at any time, and 
may prosecute, if it think fit, even after the case has been filed by the 
police. 

The Native Parquet is not represented in the Civil Courts, unlike 
the system in force in the Mixed Tribunals. 

D. Committee of Judicial Surveillance. 

This committee was established in 1891 with a view to examining 
and criticising, from a purely educational standpoint, the judicial work 
of the Native Tribunals — with the exception of the Court of Appes 
The Committee is at present composed of the Judicial Adviser 
President, the Procureur-General of the Native Courts, two Khediv 
Counsellors (standing Counsel to the Government), and the Directors 
the School of Law. 

A staff' of inspectors (English and native) is attached to the Com- 1 
niittee. These inspectors travel about the country and examine the 
records of cases decided by the tribunals, reporting on them to the 



ELECTIO:Nr, EQUITABLE DOCTEINE OF 83 

Committee at its weekly meetings. The Committee issues critical notes, 
on points of law, either to the tribunals in general or to individual 
judges, as the result of the inspectors' reports and its deliberations 
thereon, but the decisions of the Courts are left untouched as far as 
the particular suits in question are concerned. 

The above is a necessarily brief and incomplete outline of the 
extremely complicated condition of legislative and judicial affairs in 
Egypt. Those who desire more detailed information on these matters 
may be referred to the following publications : — Lord Cromer's Annual 
Keports on Egypt; the Judicial Adviser's Annual Eeports (1892-97, by 
the late Sir John Scott, K.C.M.G.; 1898 to the present time, by Sir 
Malcolm Mcllwraith, K.C.M.G.); "De la Competence des Tribunaux 
Mixtes d'Egypte," by Abdallah Simaika ; "Elements de Procedure Civile 
et Commerciale d'apres le Code indigene compare au Code Mixte," by 
Lusena Bey (Cairo, Imprimerie Nationale, 1897-99); "De revolution de 
la Condition Juridique des Europeens en Egypte," by Henri Lamba (Paris, 
Arthur Kousseau, 14 Rue Souiilot); "Regime des Capitulations dans 
I'Empire Ottoman," by G. Pelissie du Rausas (2 vols., Paris, Arthur 
Kousseau, 14 Rue Souiilot), etc., etc. 

Either. — See Stroud, Jud. Diet s.v. " Either ; " and Will ; Judicial 
Glossary. 

Ejectment. — See Recovery of Land. 

Ejusdem g^eneris, rule of .—See Interpretation. 

Election, Equitable Doctrine of .—Nature of the 

I Doctrine. — It is a principle conformable to good sense and natural 
justice that a man cannot, in the language of the law, approbate and 
reprobate — that he cannot accept a benefit under an instrument with- 
out adopting the whole of it — conforming to all its provisions, and 
t renouncing every right inconsistent with them. His doing so is an 
implied condition of the benefit. This principle or implied condition 
' is the ground of the equitable doctrine of election {Streatfield v. Streat- 
• field, 1735, Ca. t. Talb. 176; 25 E. R. 724; Noys v. Mwdaunt, 1706, 
2 Vern. 581 ; 23 E. R. 978; Dillon v. Parker, 1818, 1 Swans. 359, 38l9t., 
■ 394?i. ; 36 E. R. 422 ; 18 R. R. 72 ; Rogers v. Jones, 1876, 3 Ch. D. 688). 
It may be made clear by an illustration. Suppose that a testator by his 
will gives Blackacre, which is not his property but A.'s property, to B., 
and by the same will gives Whiteacre, which is the testator's own 
property, to A. In such a case A. cannot keep Blackacre and also 
claim Whiteacre. That would be approbating and reprobating. He 
must elect between two courses, to take under the will or against it. 
if he elects to take under the will he must conform to it by conveying 
Blackacre to B. If he elects to take against the will, he keeps Black- 
, acre, but he can only get Whiteacre on the terms of making compensa- 
\ tion to B. for the loss of Blackacre. This theory of compensation, which 
has been engrafted by the authorities on the original doctrine of election, 
lests like the doctrine itself on the implied intention of the donor. It 
works out in this way. Blackacre may be an estate worth £20,000, 
j while Whiteacre may be worth £30,000 ; but Blackacre may have a 
; fretinm affectionis for its owner, and A. elects to take against the will. 
Equity in such a case assumes jurisdiction to sequester the benefit 



84 ELECTION, EQUITABLE DOCTEINE OF 

intended for the refractory donee, in order to secure compensation to 
the person whom his election disappoints. In the supposed case the 
amount, measured in money, of B.'s disappointment is £20,000. A., 
therefore, takes Whiteacre, subject to giving up that money value of 
lUackacre to B. {Rogers v. Jones, 1876, 8 Ch. D. 689 ; Re Booth ; Booth 
V. Robinson, [1906] 2 Ch. 321 ; Grettmi v. ffmvard, 1818, 1 Swans. 443, 
444; 36 E. K. 443; 18 E. E. 95; Pickersgill v. Rodger, 1877, 5 Ch. T). 
163), and this equity of compensation B. may enforce by action. Tli* 
amount of the compensation must be ascertained, in the case of a wilh 
at the date of the testator's death, not at the date of election {Re Hancock; 
Hancock v. Pcmson, [1905] 1 Ch. 16). 

What tvill Raise. — To raise a case of election there must appear in the 
instrument whether it is a will or a settlement, for the doctrine applie- 
equally to both {Green v. Gree7i, 1816, 2 Mer. 86 ; 35 E. E. 873 ; 13 E. Jl 
277 ; Codrington v. Lindsay, 1872, L. E. 8 Ch. 578, 587), a clear intention 
on the part of the donor or settlor to dispose of property which is not hi> 
own. Whether he erroneously believed it to be his own or knew it nnt 
to be his own, makes no difference, but the Court leans as far as possible 
to a construction which would make him deal only with that to whic! 
he is entitled {Maddison v. Chajwuin, 1861, 1 Jon. & H. 470; 70 E. K. 
831; In re BidiveWs Settlement, 1862, 11 W. E. 161). Thus a general 
{[q\\^q, primd facie, passes only property of which the devisor is owner, 
and the Court will not admit evidence dehors the will to show that tlif 
testator intended to compromise in a general devise property w^hich li 
believed to be his own, but which, in fact, was not his own, for thi^ 
purpose of raising a case of election {Blake v. Bunhiiry, 1789, 1 Yes. Juii. 
523 ; 30 E. E. 464 ; 1 E. E. Ill ; Stratton v. Best, 1791, 1 A^es. Jun. 284 
30 E. E. 346; Clementson v. Gandij, 1836, 2 Keen, 309). The intent - ; 
the testator to dispose of property which is not his must appear on 
the will {Blake v. Bunburg, supra). If a testator or grantor has only a 
partial interest in property, and disposes of the whole, giving some ot 
his own property to the owner of the other part, the same principl- 
applies, and the part owner legatee must elect {Hoicells v. Jenkins, 186- 
1 De G., J. & S. 617 ; 46 E. E. 244). A precatory trust will not raise a 
case of election {Re Williams ; Williams v. Williams, [1897] 2 Ch. li' 
C. A.), nor will an appointment which is illegal as contravening the riii 
against perpetuities {Re Olivers Settlement ; Evered v. Leigh, [1905] 1 CI 
191 ; Re Beak's Marriage Settlement, [1905] 1 Ch. 256). 

To found a case of election the person benefited must be entitled in 
his own right to the property given to another, and not in his repre- 
sentative capacity {Grissell v. Sivinhoe, 1868, L. E. 7 Eq. 291 ; Cooper ^ . 
Cooper, 1870, L. E. 6 Ch. 15; affd. 1874, L. E. 7 H. L. 53). 

Persons l)ound to elect are not compellable to do so until all tln^ 
circumstances which may influence their election are known to them 
for instance, the relative value of the properties {Neivman v. Newmai 
1 Bro. C. C. 186 ; 28 E. E. 1073 ; Wake v. Wale, 1791, 3 Bro. C. C. 254 : 
29 E. E. 521), and for this purpose accounts will, if necessary, be directed 
to be taken {Boynton v. Boyntori, 1785, 1 Bro. C. C. 445; 28 E. E. 1231 
Douglas v. Douglas, 1871, L. E. 12 Eq. 617). An election made under .i 
mistake will not be held l)inding {Pusry v. Desbovverie, 1734, 3 P. Wnis. 
315; 24 E. E. 1081 ; Dillon v. Parker, U'.VS, 1 CI. & Fin. 303; 6 K. \l 
930; 36E. E. 123). 

What will Constitute. — Election may be express, but it may also 1 ■ 
implied. What will lead the Court to infer an election must depend <• 



ELECTION, EQUITABLE DOCTRINE OF 85 

the circumstances of each particular case, lleceipt of rents, settling one 
of the two funds, lapse of time, are some of the acts or defaults going to 
evidence acceptance or acquiescence, but to make them effectual for 
that purpose the person alleged to have elected must have done them 
with a knowledge of his rights, and with the intention of electing 
(Stratford v. Poiuell, 1807, 1 Ball. & B. 1 ; Brown v. Bro^vn, 1866, L. K. 
2 Eq. 481). Illustrations are furnished by Wake v. Wake, 1791, 1 Ves. 
Jun. 334; 30 E. E. 372; Padhury v. Clark, 1849, 2 Mac. & G. 298; 42 
E. R. 115; TihUts v. TihUts, 1816, 19 Ves. 656, 663; 34 E. R. 659; 23 
R. R. 79; Tonikyns v. Ladhroke,rj^4., 2 Ves. 593; 28 E. R. 377. If 
necessary, the question of election or no election may be ordered to 
be tried by a jury {Ronndell v. Currer, 1786, 2 Bro. C. C. 66, 73 ; 1 Swans. 
382, 383?i. ; 29 E. R. 39 ; 36 E. R. 434). If a time is limited for elect- 
ing, and the person to elect does not do so within the time limited, 
he will be considered as having elected to take against the instrument. 
As to the effect of a person under an obligation to elect dying without 
electing, see Fytclie v. Fytchc, 1868, L. R. 7 Eq. 490, and Pickersgill v. 
Bodcjcr, 1877, 5 Ch. D. 163, 175. 

Under Appointments in Execidion of Powers. — A good illustration of 
the doctrine of election is furnished by powers. Suppose a fund appoint- 
able by will by a father among the children, in default of appointment 
to go equally among all the children. The father by will appoints part 
of the fund among his children, and the residue of the fund to a 
stranger to the power. This is a fraud on the power, and no case of 
election is raised against the children. They can keep the shares 
appointed them, and also claim as in default of appointment the share 
given to the stranger {BHstoio v. Warde, 1784, 2 Ves. Jun. 336 ; 30 E. R. 
660; 2 R. R. 235; In re Fowlers Trust, 1859, 27 Beav. 362; 54 E. R. 
142), and the reason assigned by Lord Wedderburn is that there must 
be some free disposable property given to the person whose property is 
dealt with which can be made a compensation for what the appointor 
takes away ; and in the illustration given there is no such free dispos- 
able property, no property is comprised in the will, but that which the 
father had power to distribute. If there is, if the father by the wdll, 
exercising his power of appointment in favour of a stranger to the 
power, gives also property of his own to the children, a case of election 
arises. The donee of the power has purchased the right to put an 
alternative to the object of the power. A case of election cannot be 
raised on an appointment void for remoteness under the rule against 
perpetuities (Be Olivers Settlement ; Evered v. Leigh, [1905] 1 Ch. 191; 
Re Beales Marriage Settlement, [1905] 2 Ch. 256 ; Be Wright; Whit- 
loorth V. Wright, [1906] 2 Ch. 288). Merely precatory words requesting 
appointees, objects of the power, to leave the fund appointed to others 
not objects of the power will not raise a case of election {Carver v. 
Bowles, 1831, 2 Russ. & M. 301 ; 39 E. R. 409 ; 34 R. R. 102 ; Be Williams; 
Williams v. Williams, [1897] 2 Ch. C. A.; but see 31 L. R. Ir. 531). 

Dower. — Questions of election in relation to dower, which were very 
mimon under the old law, now seldom arise, owing to the large powers 
given to a husband by the Dower Act to bar dower by sale or 
declaration. 

Who hoioul to Fleet. — Election implies the exercise of a rational 
judgment by a person sui juris. Persons under disability are incoin- 
petent to the exercise of such a discretion. Hence an infant, a lunatic, 
or a feme covert under the old law cannot elect. In the case of an 



Qg ELECTION AGENT 

infant election is deferred— as a rule— till the infant comes of age 
(Bvomhton v. Brmiqhton, 1750, 2 Ves. 12; 28 E. R 8); but the Court 
may where it is advisable, elect for the infant at once, if the infant's 
intirest is clear {Re Mmtagn ; Faber v. Mo7itagu, [1896] 1 Ch. 549). If 
it is doubtful, the Court may refer it to chambers to inquire what will 
be most beneficial to the hifant {Chetwynd v. Fleetivood, 1742, 1 Bro. P. C. 
:^00; 1 E. K. 580; Prole v. Soady, 1859, 8 W. K. 131; Lamb v. Lamh, 
1856 5 ^V. K. 772). The practice with regard to lunatics is similar. 
Tlie Court refers it to chambers to report what would be most beneficial 
to the lunatic, and, on the result of this report being certified, elects 
accordingly for the lunatic. This jurisdiction applies equally whether 
the lunaUc is one so found or not. See Lunacy. 

Married Women. — A married woman in respect of non-separate 
property cannot elect {Cooper v. Cooper, 1874, L. E. 7 H. L. 53 ; see 
however, Ardesoife v. Bennet, 1772, 2 Dick. 463 ; Nicholl v. Jones, 1866, 
L R. 3 Eq. 696) ; but in respect of property belonging to her for her 
separate use a married woman is in the same position as a feme sole, and 
competent and compellable to elect. If, however, the separate use has 
annexed to it a restraint on anticipation, no case of election arises, and 
the reason is this, that the value of the married woman's property in 
such a case to be relinquished by way of compensation has, by the 
terms of the instrument, been rendered inalienable {In re Wlieatley ; 
Smith V. Spence, 1884, 27 Ch. D. 606), nor does the doctrine apply in 
the case of a married woman to whom an interest, with a restraint on 
anticipation attached, is given by the same instrument as that which 
gives rise to a question of election, even though at the time when the 
question of election arises the married woman has become discovert 
(Haynes v. Foster, [1901] 1 Ch. 361). The general intention that every 
part of an instrument shall take effect is rebutted by the inconsistent 
particular intention apparent in the instrument, that the married woman 
shall Ije restrained from anticipation {In re Vardmis Trusts, 1885, 31 
Ch. D. 275; Carter v. Silber, [1891] 3 Ch. 553). 

Legacy and Succession Ditty. — As to the effect of the doctrine on 
legacy and succession duty, see Laurie v. Clutton, 1852, 15 Beav. 131 
51 E. K. 486 ; and Hanson, P. L. & S. Duty. 

As to election in cases of concurrent actions, see Stay of Pro 

CEEDINGS. 

[Authoi'ities. — White and Tudor, Lea. Cas., 7th ed., 416-445 ; Watson 
Practiced Compendium of Equity, 2nd ed., 176 ; Yaizey, Sett. ; Seton, Judg. 
6th ed., 1588-1594; H. A. Smith, Principles of Equity, 3rd ed., 470-485 
Snell, Principles of Equity, 14th ed., 199-212.] 

Election Agent. 

TABLE OF CONTENTS. 

Who may l^e Election Agent . 87 

Aiiijointlnent of Election Agent . 88 

Change of Election Agent . . 88 

Remuneration .... 88 
I>«-l»uty Election Agent, Siib- 

-^K*^»ti* 89 



Election Agent's Office ... 85 
Declaration of Secrecy ... 8) 
Duties of Election Agent . . 8' 
Liability of Candidate for Acts 

of Election Agent . . .9' 
Municipal and Other Elections . 9 



The term " Election Agent " previously to the passing of the Corrup 
aud lllecal Practices Prevention Act, 1883, 46 & 47 Vict. c. 51, wa 
used to den(it4^ tlu^ person intrusted with the conduct and managemen 



ELECTION AGENT 87 

• I the business of a parliamentary election. The office of Election Agent 
in its present sense, however, was created by the Act of 1883, which 
ic([uires the appointment of an Election Agent on whom specific and 
stringent duties and responsibilities are imposed with regard to the 
making of contracts involving, and the payment and return of, election 
expenses. 

In creating the statutory office of Election Agent the purpose of the 
legislature was to secure the appointment of a person who should be 
effectively responsible for all the acts done in procuring the election, 
and more especially to provide an efficient means for the control and 
regulation of election expenses. The object of the Act, it has been said, 
was that the affairs of the election should be carried on in the light of 
(lay, and that a respectable and responsible man, responsible to the 
candidate and to the public, should be there to do all that was necessary 
(/.'/■ Field, J., Barroiv-in-Fur7iess, 1886, 4 O'M. & H. 83). 

Who may he Election Agent. — Owing to the liability entailed upon 
tlie candidate, extreme caution is requisite in the selection of an Election 
ALient, who should be a person not only experienced in the general 
management of an election, but also fully acquainted with election 
law, and especially the provisions of the Corrupt and Illegal Practices 
l*revention Acts. 

There being no essential statutory qualification, as a general rule, any 
person, whether an elector or a non-elector, may be appointed Election 
.Vi^^ent, though where an elector is appointed he may not vote (see 
( < )rrupt and Illegal Practices Prevention Act, 1883, Sclied. I. Part I. (7)). 
I'.iit no returning officer for any county or borough, nor his deputy, nor 
any partner or clerk of either of them, can be appointed Election Agent, 
sec. 50 of the Eepresentation of the People Act, 1867, 30 & 31 Vict, 
c. 102, providing that no such person may act for any candidate in the 
management or conduct of his election, and if any such person does so 
act he is guilty of a misdemeanor. This section is by the Ballot Act, 
L'^72, 35 & 36 Vict. c. 33, s. 11, applied to any returning officer or officer 
appointed by him in pursuance of that Act and to his partner or clerk. 
And a person who has previously been found or reported guilty of 
cnirupt practices must not be appointed Election Agent, the Parlia- 
mentary Elections Act, 1868, 31 & 32 Vict. c. 125, s. 44, enacting that 
ii on the trial of any election petition any candidate is proved to have 
iX'isonally engaged as agent for the management of the election any 
' ' rson knowing that such person has within seven years previous to 
' h engagement been found guilty of any corrupt practice by any 
competent legal tribunal, or been reported guilty of any corrupt prac- 
tice by a Committee of the House of Commons, or by election judges, 
or by Election Commissioners, the election of such candidate is to be 
[ void. 

It is, moreover, not advisable to appoint a registration agent, or an 
" officer, such as the chairman or secretary, of a local political association, 
: as Election Agent, there being in such cases considerable danger from 
' the possibility of the confusion of the registration expenses with the 
' election expenses, and from the possible responsibility of the candidate 
I for the acts of the association. In fact, for these reasons, as is well 
' known, political associations are usually dissolved during an election, 
, and take no part in the election (see Bodmin, 1906, 5 O'M. & H. 234, 
I per Lawrance, J.). In two recent cases candidates have been unseated 
' owing to the acts of their Election Agent, who in each case was the 



88 ELECTION AGENT 

secretary of a political association (as to this, see Hexham, 1892, 4 O'M. 
*& H. 145 ; Rochester, 1892, iUcl 158, Day's El. Cas. 99 ; see also Stepney, 
1892, Day's El. Cas. 118). The necessity for a secretary of a political 
association, whether he be a prospective Election Agent or not, to keep 
careful and proper accounts, was emphatically pointed out in Bodmin, 
1906, 5 O'M. & H. 229. 

Appointment of Election Agent. — On or before the day of nomination 
at an election a person must be named by or on behalf of each candidate 
as his agent for the election; such person is termed the "Election 
Agent " (Corrupt and Illegal Practices Prevention Act, 1883, s. 24 (1)). 
Where a candidate is nominated in his absence, an Election Agent must 
be named on his behalf ; in such case this might be done by one of tlie 
persons nominating or seconding the candidate. In most cases, however, 
the Election Agent is appointed by the candidate personally. 

The appointment of an Election Agent is obligatory, but the Act 
expressly enables a candidate to name himself as his own Election 
Agent, in which case he becomes, so far as circumstances admit, subject 
to the provisions of the Act both as a candidate and as an Election 
Agent (ihid. s. 24 (2)). 

The appointment need not necessarily be in writing, a verbal 
appointment being in law sufficient ; it is, however, usual and certainly 
most advisable in the interests both of the candidate and of the Election 
Agent for the appointment to be in writing. 

The name and address of the Election Agent of each candidate must 
on or before the day of nomination be declared in writing by the can- 
didate, or some other person on his behalf, to the returning officer. 

The returning officer, upon receiving notice of the appointment of 
the Election Agent, must forthwith give public notice of the name and 
address of every Election Agent so declared {ihid. s. 24 (3)). Notice 
may be given by advertisements, placards, handbills, or such other 
means as the returning officer thinks best calculated to afford infor- 
mation to the electors (see ihid. s. 62 (1), and the Ballot Act, 1872, 
Sched. I. r. 46). 

Only one Election Agent may be appointed for each candidate 
(Corrupt and Illegal Practices Prevention Act, 1883, s. 17 (1), and 
s. 24 (4); see also Sched. I. Part I. (1)). The same individual may be 
appointed as Election Agent on behalf of two or more candidates at an 
election, but this would create a joint candidature (see Candidate). 

Chamje of Election Agent. — The appointment of an Election Agent 
may be revoked, and in the event of sucli revocation or the death of the 
Election Agent before, during, or after the election, another Election 
Agent niust be forthwith appointed, and his name and address declared 
in writing to the returning officer, who must publicly notify the same 
(ihd. 8. 24 (4)). 

Jietmineration.— The Election Agent may be legally 'employed for 
payment (see ihid. s. 17 (1), and Sched. I. Part I. (1)). The amount of 
tlie fee or remuneration should be agreed upon at the time of the 
apponitment, and where the appointment is in writing, which as a 
matter of precaution it should always be, the amount of the remunera- 
tion should be specified; but a proviso may be, as indeed it frequently 
18, inserted for reducing it, if necessary, so as to insure that the maximum 
allowed for election expenses will not be exceeded. 

So far as circumstances admit, the Corrupt and Illegal Practices 
Irevention Act, 1883, is to apply to a claim by an Election Agent for 



ELECTION AGENT 89 

his remuneration, and to the payment thereof, in like manner as if he 
were any other creditor; and if any difference arises respecting the 
amount of such claim, it is to be dealt with as a disputed claim within 
the meaning of the Act (s. 32 (1)). The Election Agent may therefore, 
if he thinks fit, bring an action for it in any competent Court {ibid, 
s. 29 (8)). 

Deputy Election Agent, Sub-Agents. — In county elections, the Election 
Agent may appoint one deputy Election Agent, who is usually termed a 
sub-agent, to act within each polling station and no more {ibid. s. 25 (1), 
and Sched. I. Part I. (2)). The Election Agent must, one clear day 
before the polling, declare in writing the name and address of every 
sub-agent to the returning officer, who must forthwith give public notice 
of the same {ibid. s. 25 (3)). The Election Agent may, as regards 
matters in a polling district, act by the sub-agent for that district, and 
anything done for the purposes of the Act by or to the sub-agent in his 
district is to be deemed to be done by or to the Election Agent ; and any 
act or default of a sub-agent which, if he were the Election Agent, would 
be an illegal practice or offence against the Act is to be an illegal prac- 
tice or offence against the Act committed by the sub-agent, rendering 
him liable to punishment accordingly, and the candidate will suffer the 
like incapacity as if it were the act or default of the Election Agent 
{ibid. s. 25 (2)). 

It will be observed that the authority of a sub-agent is limited to 
his particular district, but within that district he is practically in the 
position of Election Agent. 

Election Agent's Office. — The Election Agent must have within the 
county or borough, or within any county of a city or town adjoining 
thereto, and each sub-agent must have within his district, or within any 
county of a city or town adjoining thereto, an office or place to which all 
claims, notices, writs, summonses, and documents may be sent, and the 
address of such office is to be declared to the returning officer at the 
same time as the appointment of the agent {ibid. s. 26 (1)). Any docu- 
ment delivered at such office and addressed to the Election Agent, or 
sub-agent, as the case may be, is to be deemed to have been served on 
him {ibid. s. 26 (2)). 

Declaration of Secrecy. — The Election Agent and every sub-agent 
must, before the opening of the poll, make a statutory declaration of 
secrecy in the presence of a justice of the peace or of the returning 
officer (Ballot Act, 1872, 35 & 36 Vict. c. 33, Sched. I. Part I. r 54). 
For form of statutory declaration of secrecy, see the article Ballot, nntCy 
Vol. I. p. 701. 

Duties of Election Agent. — It is the duty of the Election Agent in 
tlie general management and conduct of the election to comply with the 
provisions of the Corrupt and Illegal Practices Prevention Acts, and to 
take all reasonable means for preventing the commission of corrupt and 
illegal practices (see the Corrupt and Illegal Practices Prevention Act, 
1883, s. 22 {b)). He must superintend the canvassing, and keep a 
record of every canvass-book issued by him (see Canvassing). As to 
a paid polling agent acting as a sub-agent by urging voters to vote, see 
Elgin and Nairn, 1895, 5 O'M. & H. 13 ; and as to persons paid as clerks 
acting as canvassers, see Lichfield, 1895, 5 O'M. & H. 28, in which case 
the absence of any regulation or management of the canvassing by the 
Election Agent and the inability to produce books sliowing who the 
canvassers were was adversely commented on by the judges (see ibid. 29). 



90 ELECTION AGENT 

Every polling agent, clerk, and messenger employed for payment on 
behalf of the candidate at an election must be appointed by the Election 
Agent either acting by himself or by his sub-agent {ihid. s. 27 (1)). The 
nuinl^er of persons who may be legally employed for payment in such 
capacities is regulated by Sched. I. Part 1. of the same Act, and care 
must be taken not to exceed this number. The Election Agent should 
exercise extreme care in the selection of such persons, he should expressly 
instruct them as to their duties, and caution them against the commis- 
sion of election offences. All appointments made by the Election Agent 
should be in writing, and the amount of the remuneration should be 
specified. The Election Agent should enter in a book who are the 
responsible people, who are the agents, who are the clerks, who are the 
canvassers, and so on, and if that is done, at any rate he cannot be 
complained of for not having done his duty {per Cave, J., Pontefract, 
1893). 

All persons employed by the Election Agent for payment should be 
expressly warned that they must not vote (see Stepney, 1892, Day's El. 
Cas. 117). In Lichfield, 1895, 5 O'M. & H. 29, it was proved that a 
person engaged as a paid sub-agent having voted at the election, the 
Election Agent declined to pay him his fee as sub-agent, and it was 
contended that the man having been engaged and having acted as sub- 
agent, a promise to pay his fee must be inferred, but it was held by 
Polhxjk, B., that the word "promise" of payment as used in sec. 17 of 
the Act of 1883 means an actual express promise, and not that the 
promise may be inferred by the conduct of the parties, which would 
entitle a man to recover in a civil action. 

Every committee room hired on behalf of a candidate must be hired 
by the Election Agent either acting by himself or by his sub-agent. The 
number of committee rooms is regulated by the Corrupt and Illegal 
Practices Prevention Act, 1883, Sched. I. Part II. (6) and (7), and must 
not l^e exceeded. The expression "committee room," as defined by 
sec. 64, does not include any house or room occupied by a candidate at an 
election as a dwelling, by reason only of the candidate there transacting 
business with his agents in relation to such election ; nor is any room or 
building to be deemed a committee room for the purposes of the Act by 
reason only of the candidate, or any agent of the candidate, addressing 
therein electors, committee-men, or others. 

AH contracts relating to the election must be made through the 
Election Agent. A contract whereby any expenses are incurred on 
account of or in respect of the conduct or management of an election 
is not enforceable against a candidate at such election, unless made by 
the candidate himself, or by his Election Agent either by himself or 
by his sub-agent; this inability to enforce such contract against the 
canthdate does not, however, relieve the candidate from the consequences 
of any corrupt or illegal practice havincr been committed Iby his agent 
(ilrul. a. 27 (2)), 

All payments in respect of any expenses incurred on account of or 
in respect of the conduct or management of an election must, with 
some few exceptions, be made through the Election Agent (ihid. s. 28 ; 
see also s. 31), who after the election has to transmit a return and 
declaration respecting the election expenses to the returning officer 
(ifmL 8. 33). The princii)le, as it was said in a recent case in which 
the earlier decisions were reviewed, is that upon the date on which the 
Election Agent is appointed if any debts which are properly election 



ELECTION COMMISSION" 91 

debts have been contracted, they must be paid through the agent, or at 
any rate debited to him, so that he may in chide them in his return of 
election expenses {Maidstone, 1906, 5 O'M. & H. 209). In that case 
Lawrance, J., in his judgment stated that he did not agree with his 
learned brother (Grantham, J.) that the day when the election begins is 
necessarily the day when the agent is appointed, nor could he agree 
that one cannot have election expenses until one has got an Election 
Agent, otherwise all that a candidate would have to do would be to 
defer the appointment of his Election Agent, and to say that the debts 
previously contracted are not election debts. The true principle appears 
to be that if expenses are primarily or principally expenses incurred for 
the promotion of the interests of the candidate they are election expenses 
{ibid. 210 ; see also the article Election Expenses). 

An election may be held to be void upon the ground that the return 
uf election expenses by the Election Agent is not a proper or sufficient 
return (see Bodmin, 1906, 5 O'M. & H. 229, per Lawrance, J.). 

The duties of the Election Agent in connection with the payment 
and return of the election expenses are undoubtedly the most important 
of his functions, and have given rise to much discussion and some 
difference of opinion among the judges at the trial of recent election 
petitions ; for further information as to which, see Election Expenses. 

The Election Agent should also be very careful to keep books show- 
ing particulars of every item of his expenditure in connection with the 
election. The loss or destruction of accounts by an Election Agent 
is always severely commented on by judges at the trial of election 
petitions (see, for example, per Cave, J., Stepney, 1892, Day's El. 
Cas. 37 ; and per Lawrance, J., Bodmin, 1906, 5 O'M. & H. 229). 

Licd)ility of Candidate for Acts of Election Agent. — The nature of 
the liability of a candidate for the acts and neglects of his Election 
Agent is treated of in the articles on Agency, Election ; Candidate ; 
CoKKUPT Practices ; Illegal Practices ; Eelief. In a recent parlia- 
mentary election petition the election was avoided by reason of corrupt 
practices (treating) by a person who had acted as Election Agent, though 
not formally appointed (see Bodmin, 1906, 5, O'M. & H. 228, 231). 

Micnicipcd and other Elections. — The office of Election Agent, in its 
statutory sense, exists only with regard to parliamentary elections. It 
may, however, here be mentioned that an agent for the general manage- 
ment of the election may be appointed at a municipal election, but in 
such case he must not be paid any remuneration for his services, as the 
employment of any paid agent, except certain clerks and messengers 
and one polling agent in each polling station, would be an illegal employ- 
ment within the Municipal Elections (Corrupt and Illegal Practices) Act, 
1884, 47 & 48 Vict. c. 70, s. 13. So, also, in the case of other elections, 
agents may be legally employed, but, with the exception of a polling 
agent, may not be paid (see further. Municipal Elections (Corrupt and 
Illegal Practices) Act, 1884, s. 37 ; Local Government Act, 1894, s. 48 
(3) {})) ; London Government Act, 1899, s. 2 (5), and the article Election 
Expenses). 

Election Commission. — See Election Commissioners. 



92 



ELECTION COMMISSIONEKS 



Election Commissioners. 

TABLE OF CONTENTS. 



Wlieii Ai)poiiited .... 

How Appointed .... 

\Vlio may l>e .... 

Death, Resignation, etc. 

Oath, to 1)6 taken by . 

Ai)i)ointnient of Secretaiy, Clerks, 
etc 

Notice of Appointment of Com- 
missioners 



92 
92 
93 
93 
93 

93 

93 



The Inquiry . . . .93 

Witnesses, etc 94 

Adjournment .... 95 

Report 95 

Appeal 95 

Consequences of Report . . 96 
Expenses of Election Commis- 
sioners 97 



IVTien Appointed. — Election Commissioners are persons appointed hj 
the Crown on a joint address of both Houses of Parliament for the 
purpose of making inquiry into the existence of corrupt practices at 
parliamentary elections. 

Having regard to the successful operation of the Corrupt and Illegal 
Practices Prevention Acts, and, in particular, the provisions respecting 
the attendance of the public prosecutor at the trial of election petitions, 
and the prosecution by liim of offenders (see the Corrupt and Illegal 
Practices Prevention Act, 1883, 46 & 47 Vict. c. 51, s. 43), the necessity 
for the appointment of Election Commissioners is very considerably 
reduced, and of recent years Election Commissions have been of ex- 
tremely rare occurrence. N'evertheless, the means for the appointment 
of an election commission are still in existence, and may at any time be 
put into execution. Election Commissioners were indeed appointed so 
recently as 1906, in consequence of the report by the election juilges, 
who tried the Parliamentary Election Petition for the City of Worcester 
in that year, that there was reason to Ijelieve that extensive corrupt 
practices took place at the preceding parliamentary election for the 
City of Worcester. 

Hmo Appointed. — Election Commissioners may be appointed under 
the powers conferred by the Election Commissioners Act, 1852, 15 c^ IG 
Vict. c. 57, which was passed to provide for more effectual inquiry into 
the existence of corrupt practices at elections. Sec. 1 enacts that where 
by a joint address of both Houses of Parliament it shall be represented 
to the Crown that a committee of the House of Commons appointed 
to try an election petition, or a committee of that House appointed to 
inquire into the existence of corrupt practices at any parliamentary 
election, have reported to the House that corrupt practices have, or that 
there is reason to believe that corrupt practices have, extensively pre- 
vailed in any county, division of a county, city, borough, university, or 
place in the United Kingdom electing or sharing in the election of a 
meml)er or members to serve in Parliament, at any election or elections 
of such member or members, and the said Houses shall thereupon pray 
the Crown to cause inquiry to be made under the Act by persons named 
in the address, it shall l)e lawful for the Crown, by warrant under tlie 
Royal Sign Manual, to appoint the said persons to be Commissioners 




upon 



judgoB (nee Klection Petition), and the report of the judges on the trial 
of an election pcitition as to the prevalence of corrupt practices in any 
county or borough at the election to which the petition relates, has, for 



ELECTIOIS^ COMMISSIONEES 93 

all the purposes of the Election Commissioners Act, 1852, the same 
effect, and may be dealt with in the same manner, as if it were a 
report of a committee of the House of Commons appointed to try an 
election petition (see the Parliamentary Elections Act, 1868, 31 & 32 
A'ict. c. 125, s. 15). Election Commissioners may, therefore, be appointed 
upon an address of both Houses in consequence of the report of the 
election judges on the trial of an election petition. Election Commis- 
sioners were so appointed upon a joint address of the two Houses in 
1906, as mentioned above, to inquire into the existence of corrupt 
practices in the City of Worcester. 

Election Commissioners may also be appointed by the Crown on an 
address of both Houses of Parliament in consequence of a petition to 
the House of Commons, signed by two or more electors, and presented 
within twenty -one days after the return of a member, or within 
fourteen days after the meeting of Parliament, alleging the prevalence 
of corrupt practices at the then last election for the borough or county 
{ibid. s. 56). 

Who may he. — The Election Commissioners, usually three in number, 
are the persons named in the address ; such persons, where the inquiry 
to 1)6 made relates to a place in England or Ireland, must be barristers- 
at-law of not less than seven years' standing, or, where the inquiry 
relates to a place in Scotland, advocates of not less than seven years' 
standing. They must not be members of Parliament, and must not 
hold any office or place of profit under the Crown other than that of 
a recorder of any city or borough (Election Commissioners Act, 1852, 
s. 1). In the City of Worcester Parliamentary Election Commission, 
1906, the three Commissioners appointed were E. Tindal Atkinson^ 
Esq., K.C., Horace E. Avory, Esq., K.C., and C. W. Mathews, Esq., each 
of whom at the time of appointment held the office of a recorder. 

Death, Resignation, etc. — In case any of the Commissioners appointed 
die, resign, or become incapable to act, the surviving or continuing 
Commissioners or Comnnssioner have power to act in the inquiry as if 
thev or he had been solely appointed for the purposes of the inquiry 
iiUd.). 

Oath, to he taken hy. — Every Commissioner before beginning to act 
nuist take an oath that he will truly and faithfully execute the powers, 
and trusts vested in him according to the best of his knowledge and 
judgment (for form of oath, see ihid. s. 2). Such oath is to be taken 
before a judge of the King's Bench Division, and in Scotland before a 
judge of the Court of Session {ihid.). 

Airpointment of Secretary, Clerks, etc, — The Commissioners have power 
to appoint and dismiss at pleasure a secretary, and so many clerks, 
messengers, and officers, as a Secretary of State may deem necessary for 
the purpose of conducting the inquiry, and to pay them such salaries as. 
the Treasury deem reasonable {ihid. s. 3). 

Notice of Aiypointnicnt of Commissioners. — Notice is required to be 
given by the Connnissioners of their appointment, and of the time and 
l)lace of holding their first meeting. This is to be published in some 
newspaper in general circulation in the neighbourhood of the place for 
which the inquiry is to be held {ihid. s. 4). 

The Inquiry. — Upon their appointment, or within a reasonable time 
afterwards, the Connnissioners must go to the county, division, city, 
borough, university, or place in respect of which the inquiry is instituted, 
and from time to time hold meetings for the purposes of the inquir}- 



94 ELECTION COMMISSIONEKS 

at some convenient place within the same, or within ten miles thereof 
(ibid 8. 4). The meetings of the Commissioners may, however, with the 
consent and approbation of a Secretary of State, be held in London or 
Westminster (ibid. s. 5). 

It is the duty of the Commissioners, by all such lawful means as to 
them appear best with a view to the discovery of the truth, to inquire 
into the manner in which the election has been conducted, and whether 
any corrupt practices have been committed at such election, and, if so, 
the nature of the corrupt practices (ibid. s. 6). Moreover, it being 
deemed expedient to extend such an inquiry to the case of illegal 
practices, it was enacted by the Corrupt and Illegal Practices Preven- 
tion Act, 1883, 46 & 47 Vict. c. 51, s. 12, that when Election Commis- 
sioners have been appointed in pursuance of the Election Commissioners 
Act, 1852, and the enactments amending the same, they may make 
inquiries and act and report as if "corrupt practices" in such enactments 
included illegal practices. The Commissioners have therefore to inquire 
as to the existence of illegal practices as well as of corrupt practices. 
In case they find that corrupt or illegal practices have been committed 
at the election into which they are authorised to inquire, they are 
empowered to make the like inquiries concerning the latest previous 
election for the same place, and upon their finding corrupt or illegal 
practices to have been committed, they may make the like inquiries 
concerning the election immediately previous thereto for the same place, 
and so in like manner from election to election as far back as they may 
think fit (ibid. s. 6). But in no case may they make any inquiries con- 
cerning any election prior to the passing of the Corrupt and Illegal 
Practices Prevention Act, 1883 (see sec. 49 of that Act). And where 
upon inquiry concerning any election they do not find that corrupt or 
illegal practices have been committed, they are not to inquire concerning 
any previous election (Election Commissioners Act, 1852, s. 6). 

JVit7iesses, etc. — The Commissioners have full power, by summons 
under their hands and seals, to secure the attendance of all witnesses 
whose evidence may be material to the subject-matter of the inquiry, 
and to require the production of all such books and documents as may 
be necessary (ibid. s. 8). If any witness summoned by the Com- 
missioners fails to appear, he will, upon being reported by them to any 
of tlie superior Courts, incur the same penalties as if he had failed to 
oljey a writ of subpoena (ibid. s. 12). The Commissioners are empowered 
U) administer an oath or affirmation to the witnesses who are examined 
Ixifnre them (ibid. s. 11), and if any person, summoned to attend and 
liaving appeared, refuses to be sworn, or to give evidence, or to produce 
any papers, etc., which are in his possession or under his control, or, if 
any person is guilty of contempt of the Commissioners, they may 
exercise the same powers as any judge of the superior Courts (ibid. s. 12). 
Any witness giving false evidence before the Commissioners is liable to 
the |)enaltie8 of perjury (ibid. s. 13). 

The Commissioners have power to award to any witness summoned 
to appear Ixifore them a reasonable sum for his travelling expenses and 
for his maintenance according to a scale determined and approved by 
the Treasury (ibid. s. 14). The Commissioners are required to certify to 
the Treasury tlie names of the said witnesses, together with the sums 
allowed to each, and to pay to the said witnesses the said sums so 
allowed out of any money which may be provided by Parliament for the 
puriKises of the Conunission (ibid.). 



ELECTION COMMISSIONERS 95 

A witness before Election Commissioners will not be excused from 
answering any question relating to any offence at or connected with the 
election on the ground that the answer thereto may criminate or tend to 
criminate himself, or on the ground of privilege, but if he answers truly 
all questions which he is required to answer he will be entitled to receive 
a certificate of indemnity (as to which, see the Corrupt and Illegal Prac- 
tices Prevention Act, 1883, s. 59 ; see also R. v. Hidme, 1870, L. K. 5 Q. B. 
:377). It has been held that the decision of the Commissioners in refusing 
to grant a certificate of indemnity to a witness is final {R. v. Holl, 1881, 
7 Q. B. D. 575). At the City of Worcester Parliamentary Election 
Inquiry, 1906, the Commissioners refused to grant certificates of 
indemnity to thirty-one of the persons who were reported as guilty of 
corrupt or illegal practices. 

Adjournment. — The Commissioners have power to adjourn their 
meetings held for the purposes of the inquiry from time to time, and 
from any one place to any other place within the county, division, city, 
borough, university, or place, or within ten miles thereof, as to them may 
seem expedient. They may not, however, adjourn the inquiry for any 
period exceeding one week without the consent and approbation of 
one of the principal Secretaries of State (Election Commissioners Act, 
1852, s. 4). 

Report. — The Commissioners are required from time to time to report 
to the Crown the evidence taken by them, and what they find concern- 
ing the premises, and especially they are to report with respect to each 
election the names of all persons whom they find to have been guilty of 
corrupt and illegal practices at such election (ibid. s. 6). Every such 
report is to be laid before Parliament within one month after it is made, 
or if Parliament be not then sitting then within one month after the 
then next meeting of Parliament (ibid. s. 7). When reporting that 
certain persons have been guilty of any corrupt or illegal practice, the 
Commissioners must report whether those persons have or have not 
been furnished with certificates of indemnity, and such report, accom- 
panied with the evidence on which it was based, is to be laid before 
the Attorney -General with a view to his instituting or directing a 
prosecution against such persons as have not received certificates of 
indemnity, if the evidence should, in his opinion, be sufficient to support 
a prosecution (Corrupt and Illegal Practices Prevention Act, 1883, s. 60). 
The Election Commissioners of 1906, as the result of their inquiry into the 
parliamentary election for the City of Worcester, reported ninety-six 
persons as guilty of corrupt practices, thirty-one of whom were refused 
certificates of indemnity, and two persons as guilty of an illegal practice. 
As to the report of corrupt practices by justices of the peace, barristers, 
solicitors, or other professional persons, and of persons holding licences, 
see ibid. s. 38 (6)-(9), see also Corrupt Practices. 

Before any person is reported to have been guilty at an election of 
any corrupt or illegal practice, notice must be given to him, and if he 
appears in pursuance of the notice he is to have an opportunity of being 
heard by himself (see R. v. Mansel Jones, 1889, 23 Q. B. D. 29), and of 
calling evidence in his defence to show why he should not be so reported 
(Corrupt and Illegal Practices Prevention Act, 1883, s. 38 (1)). As to 
service of such notice, ibid. s. 62 (2). 

Appeal. — An appeal lies against the report of Election Commissioners 
to the next Court of oyer and terminer or gaol delivery in the county or 
place in which the corrupt or illegal practice is alleged to have been 



96 ELECTION COMMISSIONERS 

committed {ibid. s. 38 (2)). Subject to rules of Court — and no rules 
have hitherto been made — such appeal may be brought, heard, and 
determined in like manner as if the Court were a Court of Quarter 
Sessions and the Commissioners were a Court of summary jurisdiction, 
and the person so reported had been convicted by a Court of summary 
jurisdiction for an offence under the Act {ibid.). Notice of every such 
appeal nmst be given to the Director of Public Prosecutions within three 
days after the appeal is brought {ibid.). Such an appeal was brought 
against the report of the Commissioners in the City of Worcester Elec- 
tion Commission, 1906, by a person reported for bribery, and was tried 
before Bighani, J., at the Worcester Assizes in March 1907. The learned 
judge diflered from the finding of the Commissioners as to the appellant 
being guilty of corrupt practices of bribery, and as to these he reversed 
the report of the Commissioners. There being no rules of procedure 
under the Act, and no such appeal having been brought since the Act 
of 1883, Bighani, J., directed the clerk of assize to draw up an order to 
the effect that the report of the Commissioners, by which they reported 
the appellant for corrupt practices, be set aside, and that the report be 
sent to the Speaker of the House of Commons (see B. v. Ccddicott, Tiincs 
newspaper, March 13, 1907). 

Where it appears to the Lord Chancellor that such appeals are likely 
to interfere with the ordinary business of any Courts of oyer and terminer 
or gaol delivery, he may direct such appeals, or any of them, to be heard 
by the judges for the time being on the rota for election petitions, in 
which case one of such judges is to proceed to the county or place where 
the offences are alleged to have been committed, and there hear and 
determine the appeal as if such judge were a Court of oyer and terminer 
{ibid. s. 38 (3)). 

Conseqtiences of Report. — Every person who is reported by Electi(Hi 
Commissioners to have been guilty of any corrupt or illegal practice at 
an election, whether he obtained a certificate of indemnity or not, is 
subject to the same incapacity as if he had at the date of such election 
been convicted of the offence of which he is reported guilty. The report 
will not, however, avoid the election of any candidate who lias been 
declared by an Election Court on the trial of a petition to have been 
duly elected at such election, nor will it render him incapable of sitting 
in the House of Commons during the Parliament for which he was 
elected {ibid. s. 38 (5)). As to the incapacities resulting from convic- 
tion for corrupt or illegal practices, see Coerupt Practices ; Illegal 
Practices. Such incapacities will only attach to any person where the 
report expressly finds that he has been guilty of a corrupt or illegal 
practice ; it is not enough that facts are stated in the report from which 
such offences might be inferred (see Grant v. Overseers of Pagham, 1877, 
3 C. P. D. 80). 

Moreover, in consequence of the reports of Election Commissioners 
as to the extensive prevalence of corrupt practices in certain boroughs, 
such constituencies have in some cases been expressly disfranchised by 
statute, and the voters reported guilty of corrupt practices have been 
disfranchised or subjected to incapacities in respect of voting. Thus 
the boroughs of Lancaster, Great Yarmouth, Eeigate, and Totnes were 
disfranchised in 1867 ; Bridgewater, Beverley, Sligo, and Cashel in 1870 ; 
Norwich in 1876 ; Boston, Canterbury, Chester, Gloucester, Macclesfield, 
Oxford, and Sandwich in 1880 (see Pepresentation of the People Act, 
1867, 30 & 31 Vict. c. 102, ss. 12-16; 33 & 34 Vict. c. 21 ; 33 & 34 



ELECTIOlSr EXPENSES 



97 



Vict. c. 25; 33 & 34 Vict. c. 38; 33 & 34 Vict. c. 54; 39 & 4u Vict. c. 
72; 44 & 45 Vict. c. 42; 45 & 46 Vict. c. 68; Eedistribution of Seats 
Act, 1885, 48 & 49 Vict. c. 23, ss. 3 and 28 ; see also May, Parliamentarij 
Practice, 11th ed., 1906, pp. 661, 662). 

The report of the Eoyal Commission appointed to inquire into the 
existence of corrupt practices at the parliamentary election for the City 
of Worcester in 1906, which was made on November 22, 1906, stated 
{inter alia), as a result of the inquiry, that the Commissioners had arrived 
at conclusions that the constituency as a whole was not corrupt ; that 
there existed in Worcester a class of voters numbering approximately 
500, and consisting mainly of the needy and loafing class, but including 
a considerable number of working men in regular employment who 
were prepared to sell their votes for drink or money ; that this state of 
things had existed since the date of the limit of their inquiry, viz., 1883 ; 
that at the parliamentary election of January 1906 corrupt practices on 
an organised system had extensively prevailed among the class above 
mentioned. In consequence of the member for the City of Worcester 
having been unseated on petition, a motion was made in the House of 
Commons on February 14, 1907, for the issue of a new writ for the elec- 
tion of a member to serve in Parliament for the borough of Worcester. 
After some debate, in which the report of the Commissioners was referred 
to, the House divided, and the motion was lost by a majority of two (see 
Times, February 15, 1907), the result being the temporary disfranchise- 
ment of the City of Worcester. 

Expenses of Election Commissioners. — As to expenses of Election Com- 
missioners, see the Election Commissioners Expenses Acts, 1869 and 
1871, 32 & 33 Vict. c. 21, and 34 & 35 Vict. c. 61 ; see also Corrupt and 
Illegal Practices Prevention Act, 1883, s. 58. 



Election Expenses. 



TABLE OF CONTENTS. 



History 97 

What are Election Expenses . 98 

Commencement of Liability . .100 
Expenses before Appointment of 

Election Agent . . . .103 
Maximum Expenditure . . 104 
Legal Expenses .... 104 



Illegal Expenses .... 105 

Payment of Election Expenses . 105 

Personal Expenses of Candidate . 10(> 

Petty Expenses .... 107 
Return and Declaration of Election 

Expenses 107 

Municipal and other Elections . 112 



History. — The incurring of excessive expenses in connection with 
parliamentary elections has always been deemed contrary to law, as 
violating the fundamental principle of the freedom of elections and con- 
sequently subversive of the constitution of Parliament (see the preamble 
of the Treating Act, 1696, 7 & 8 Will. ill. c. 4). 

The reduction, regulation, and control of expenditure by candidates 
at elections has long engaged the attention of the legislature, and U> 
this end various legislative efforts have been directed. Tlius in 1854 an 
Election Auditor, to be appointed by the candidate, was intrusted with 
the auditing and publication of accounts of payments made in respect of 
the election (see Corrupt Practices Prevention Act, 1854, 17 & 18 Vict, 
c. 102). This proving to be an ineffectual means of control, in 1863 the 
appointment of an Expenses Agent, through whom all payments in 
respect of election expenses were to be made, was provided for by the 
Corrupt Practices Act, 1863, 26 & 27 Vict. c. 29. Finally, in 1883, this 
VOL. v. 7 



9s ELECTION EXPENSES 

officer was superseded by the statutory creation of an officer termed the 
Election Agent, who was fixed with responsibility for the management 
and conduct of the election, and charged with stringent duties in con- 
nection with tlie incurring, payment, and return of election expenses (see 
the Corrupt and Illegal Practices Prevention Act, 1883, 46 & 47 Vict. 
c. 51, ss. 24-35; see also Election Agent; as to his duties with regard 
to election expenses, see post). 

What are Election Expenses. — Any expenses incurred " on account 
of or in respect of the conduct or management of an election " are elec- 
tion expenses (see the Corrupt and Illegal Practices Prevention Act, 
1883. s. 27 (2) and s. 28 (1)). 

The meaning of election expenses within this section has formed the 
subject of much argument and discussion, and some difference of opinion 
among the judges, in recent election petitions. The principle, as was 
pointed out in a recent petition, undoubtedly is, that if expenses are 
primarily or principally expenses incurred for the promotion of the 
interests of the candidate, they are election expenses {Maidstone, 1906, 
5 O'M. & H. 210). In Elgin and Nairn, 1895, 5 O'M. & H. 5, it was 
held that the phrase " conduct or management of an election " means a 
definite election within the knowledge and contemplation of the parties 
who are engaged in conducting and managing it. 

In Great Yarmouth, 1906, it was said by Channell, J., that from the 
time when a man becomes the adopted candidate he is in a position in 
whicli he may incur expenses for the conduct and management of that 
election which is still in the future, but it does not at all follow that all 
the expenses which he incurs because he is a candidate, and which he 
would not incur if he were not a candidate, and which in one sense 
therefore have a reference to that election which is still in the future, 
are expenses incurred in the conduct and management of the election. 
Two classes of expenditure which a candidate almost invariably incurs 
from the time at any rate when he is announced as a candidate were 
referred to by the learned judge. First, expenses incurred in promoting 
and disseminating the political opinions of the party to which he 
belongs, and in holding meetings at which speeches are made upon 
subjects of current party politics. These expenses, if they can be 
identified as being in reference to the political views of the party, are 
not, so it was held, expenses in respect of the conduct and management 
of the election. Secondly, the expenses which a candidate incurs for 
the purpose of making himself personally popular, or in " nursing a con- 
-stituency," are not necessarily part of the conduct and management of 
an election. Each item of such expenditure must be carefully examined 
to see whether it is identified with the particular election in prospect, 
but, speaking generally, Channell, J., stated that expenses of that char- 
acter would not in his opinion come within the " expenses in respect of 
the conduct and management of the election " which have to be paiil 
through the Election Agent and which have to be kept within a definite 
maxinmm (see 5 O'M. & H. 189, 190). 

With regard to illegal expenditure, the Act prohibits the making of 
certain payments "for the purpose of promoting or procuring the 
election of a candidate" (see ihid. s. 7 (1) and s. 16 (1); see also ;)os/, 
under the head Illegal Expenses). 

No contract whereby any expenses are incurred on account of or in 
respect of the conduct or management of an election is enforceable 



ELECTION EXPENSES 99 

against a candidate unless made by the candidate or by his Election 
Agent either by himself or by his sub-agent (ibid. s. 27 (2)). 

Whether any particular item of expenditure was incurred on account 
of or in respect of the conduct or management of the election must 
depend upon and be determined by the circumstances of each case (see, 
for example, the judgments in Elgin and Nairn, 1895, 5 O'M, & H. 12). 
Thus payments to a newspaper by way of subsidy for the purpose of 
promoting a particular view, and not merely for the purpose of the 
election, have been held not to be election expenses {Kennington, 1886, 
4 O'M. & H. 93 ; Lichfield, 1895, 5 O'M. & H. 34). 

Expenses connected solely with the registration of voters are not 
regarded as election expenses (see Kennington, 1886, 4 O'M. & H. 93 ; 
Hexham, 1892, Day's El. Cos. 91 ; Haggerston, 1896, 5 O'M. & H. 70). 
So the salary of an agent who was the organising secretary of a 
political association who was employed on registration work, was held 
not to come under the category of expenses incurred in furtherance or 
promotion of the candidature {Elgin and Nairn, 1895, 5 O'M. & H. 9). 
It has been suggested that wliere a secretary is paid for regis- 
tration or organisation work, and he devotes his time substantially 
to work of tliat character, but gives a small part of his time to 
election work, a portion of his salary need not necessarily be returned 
as forming part of the election expenses {Haggerston, 1896, ihid. 71, 
per Bruce, J.). 

" A candidate," it has been said in a recent petition, " generally pays 
registration expenses, and he clearly pays in hopes that what is done 
will promote his election, and yet it has been decided that those are 
not expenses in the conduct and management of the election" {Great 
Yarmouth, 1906, 5 O'M. & H. 191, per Channell, J.). But election work 
must not be done under the guise of registration work (see Stepney, 1892, 
Day's El. Gas. 118). 

The expenses of political associations incurred for the purposes of 
the association are not election expenses, although the candidate may 
indirectly be benefited {ibid.; see also Walsall, 1892, ibid. 107; Maid- 
dmie, 1906, 5 O'M. & H. 207, 210). It is possible, as was pointed out 
in Lichfield, 1895, 5 O'M. & H. 86, for a political body to carry on great 
expenditure, and show great energy, without in any way having any- 
thing to do with the candidate. 

Meetings held before the election for the purpose of ascertaining the 
opinion of the constituency and the extent of the opposition, have been 
held not to be chargeable as expenses in the conduct and management 
of the election {Lichfisld, 1895, 5 O'M. & H. 35; see also Lancaster, 1896, 
ihid. 44). And the expense of giving political lectures for the education 
of a constituency is not at all necessarily an expense on account of the 
election. Nor are political lectures, even though given with the view of 
advancing the prospects of a particular candidate, necessarily election 
expenses ; that must depend upon the circumstances in each case (see 
Haggerston, 1896, 5 O'M. & H. 70). 

The expense of holding meetings for selecting a candidate cannot 
properly be said to be expenses incurred in procuring the election, 
although indirectly they may promote the interests of the party. If 
the primary, direct, and real object is to get a candidate, the expenses 
incurred in so doing are not within the Act. If, however, the nominal 
object is to get a candidate, but the real object is to promote the 
election of the individual candidate, they would be election expenses 



100 ELECTION EXPENSES 

within the Act (see Noimich, 1886, 4 O'M. & H. 84 ; but see Stepney, 
1886, ibid. 38; and Great Yarmouth, 1906, 5 O'M. & H. 192). 

The expenses of public meetings are not election expenses unless the 
meetings are in some way connected with the election of the candidate. 
A meeting called for general political purposes does not become an 
election nieeting merely because a candidate attends it or some allusions 
are made to his candidature. It is in each case a question of fact 
whether the main object of the meeting is to promote the election of 
the candidate (see Haggerston, 1896, 5 O'M. & H. 72). 

In Ch'cat Yarmouth, 1906, 5 O'M. & H. 188, the expenses of ward 
meetings and smoking concerts at which municipal as well as parlia- 
mentary politics were discussed were held not to be expenses incurred 
with regard to the conduct and management of the election ; and though 
the respondent had been present at and addressed the meetings upon 
political subjects, the expenses of these political meetings were held to 
have been properly omitted from the return {ihid. 191). 

In Bodmin, 1906, the judges differed as to whether the expenses of 
more than forty puljlic meetings held in the constituency before the 
election in order to make the opinions of the candidate known to the 
electors, at which meetings election resolutions were proposed and carried, 
were or were not expenses incurred by the candidate with reference to 
the conduct and management of his election. These expenses were 
omitted from the return, but if returned would have made the total 
largely in excess of the legal maximum. It was held by Grantham, J., 
that they were not election expenses, but Lawrance, J., held that the 
expenses of all the meetings ought to have been returned, and 
was prepared to hold that the election was void on the ground that 
the return was not a proper or sufficient one (see 5 O'M. & H. 
227-229). X 

Commencement of Liability. — The determination of the period at 
which a candidate's liability for election expenses commences is a 
question of considerable difficulty, and one that has figured prominently 
in recent cases. Having regard to the practical importance of the sub-= 
ject, it seems desirable to refer to the rulings of the judges in moderui 
petitions in which the question has been discussed. 

The legislature have refrained from giving any definition of what is 
meant by the " conduct and management of an election," or from fixing 
my time at which expenditure under this head shall be held to begin 
(see per Lord M'Laren, Elgin and Nairn, 1895, 5 O'M. & H. 4). It is 
observable that sec. 8 of the Corrupt and Illegal Practices Prevention 
Act, 1883, which imposes a scheduled maximum of expenditure for an 
election which is proportionate to the magnitude of the constituency, 
and prohibits all expenditure in excess of that maxiniui;i, is in no way 
limited to exi)en8es incurred subsequently to the dissolution of Parlia- 
ment, or in the case of a casual election subsequently to the issue of the 
\sni {i)nd.). It is, indeed, now settled that a person may become a 
candidate before the dissolution, vacancy, or issue of the writ, for the 
purj)08e of incurring liability for election expenses. But the period of 
nability nnist lie confined within reasonable limits, which must neces- 
wirily 1m? determined by the facts of eacli case. As soon, in fact, as an 
individual comes Ijefore a constituency with a view to being elected at 
the next election, and begins to take measures to promote his election, 
m 8(Km does his lialiility connnence (see Walsall, 1892, 4 O'M. & H. 125 ; 



I 



ELECTIOX EXPENSES 101 

Rochester, 1892, ibid. 159; Stepney, 1892, Day's El. Cccs. 117; Lichfield, 
1895, 5 O'M. & H. 36 ; see also Candidate). 

The commencement of candidature for the purposes of liabiUty with 
regard to the amount and return of election expenses was discussed at 
length in Elgin and Nairn, 1895, 5 O'M. & H. 2, in which case it was 
contended for tlie petitioners that an election began the moment a 
candidate was presented as a person soliciting the suffrages of the 
electors, and for respondent that an election prinid facie did not begin 
until the nomination day, and that a person could not have the status 
of a candidate until there was a vacancy. Lord M'Laren in his judgment, 
after approving the principle laid down by Field, J., in Kennington, 1886, 
4 O'M. & H. 93, that the commencement of an election is a question of 
fact to be determined with reference to the particular case, indicated 
three possibilities : (1) Where it is known that an election is to take 
place and the ministers are only waiting for the completion of the new 
electoral roll to announce the dissolution, and especially if that has 
been announced on authority in Parliament, from that time the electors 
are put upon the selection of a candidate, and intending candidates 
are open to offer themselves for the suffrages of the constituency 
(5 O'M. & H. 5) ; (2) the case of an unexpected death vacancy, where 
an election could not be in the thoughts of the people until the vacancy 
occurred {ibid. 5); (3) the case where there is a vote in the House of 
Commons adverse to the ministry, and where from the moment when 
that vote is announced everyone is looking forward to a dissolution of 
Parliament, from that time the election has certainly begun, though 
it may have begun at an earlier period (ihid. 5, 6). The conclusion at 
which Lord M'Laren arrived was that it is impossible to lay down any 
definite term for the commencement of an election, or to deal with this 
otherwise than as a question of fact in which the general political history 
of the period and the conduct of the individual candidate are both to be 
taken into account. In the particular case the learned judge held that 
the respondent being admittedly a " prospective candidate " in February 
1894, about sixteen months before the election, he was a candidate for 
the purpose of incurring election expenses from that date {ibid. 6). 
Lord Kyllachy held that the legislature having confined the enactment 
to expenses which can be attributed to the " conduct and management 
of the election," those words contemplate an election which is not in 
nubibus, but which is reasonaljly imminent {ibid. 10), and that what the 
legislature had in view as to the period of the election — the period of 
the election which was to be conducted and managed — was a period not 
at least much anterior to the series of events which immediately precede 
tlie nomination, and which begins in the case of a general election with 
the announcement of the dissolution, and in the case of a bye-election 
with the announcement of the vacancy {ibid. 11). It becomes the duty 
of the election judges, continued Lord Kyllachy, to consider each case 
with respect to its own facts, and to say in each case whether or not 
special circumstances exist requiring them to hold that the election 
began prior to what he termed the normal period. In considering that 
question they must have regard to the whole facts, the nature of the 
work done, and of the expenses incurred, the question how far the 
operations of the candidate were continuous up to the election, or were 
intermittent, taking the shape merely of periodical visits to the constitu- 
ency. Above all, they were to have regard to whether they had before 
them evidence of any attempt to evade the Act — evidence, for example. 



102 ELECTION EXPENSES 

of profuse expenditure purposely antedated so as to escape the Act — or 
whether, on the other hand, everything appeared to have been done in 
gooil faith and in ordinary course, the pre-election operations and pre- 
election expenditure being on the whole fair and reasonable, having 
regard to the position of the candidate and the character of the constitu- 
ency (ibuL 12). Applying these principles, Lord Kyllachy differed 
from the conclusions of Lord M'Laren in the particular case, and held 
that the respondent's election candidature had not commenced in 
February 1894 (ibid. 12). 

In Lichfidd, 1895, 5 O'M. & H. 35, Pollock, B., referring to the 
£1(1111 Case, said : " Whether I should agree with it in toto I will not say, 
])ut I think there is great good sense in the decision." It was held that 
the respondent being the selected candidate in March 1895, four months 
before the dissolution in July 1895, the election had commenced and 
the expenses of certain meetings held in March were election expenses, 
and the election was declared void upon the ground that they ought to 
have been included in the return. Bruce, J., held that as soon as a 
candidate begins to hold meetings in the constituency to advance his 
candidature the election commences {ibid. 37). 

In Lancaster, 1896, 5 O'M. & H. 44, the respondent was recommended 
as candidate in July 1893, two years before the dissolution, but no 
resolution adopting him as candidate was passed. It was contended that 
all expenses of subsequent meetings were election expenses, but it was 
held by Pollock, B., and Bruce, J., that the candidature had not then 
commenced. 

In Haggerstm, 1896, 5 O'M. & H. 69, the respondent admitted that 
he became a candidate on November 17, 1892, two years and eight 
months before the election, which was on July 17, 1895, but the charge 
that election expenses were incurred in excess of the maximum was 
not proved {iUd. 71). 

In Great Yarmouth, 1906, 5 O'M. & H. 188, the judges differed as 
to the date of the commencement of the election, Grantham, J., dissent- 
ing from the dicta of the judges in the earlier cases {ibid. 191). Channell, 
J., stated that he quite adopted the view which had been put forward 
by other judges that the time when the election is supposed to com- 
mence might, for several purposes, be an important matter, and that 
it certainly is not limited to the commencement of the active part of 
the election by the occurrence of a vacancy or by the issue of the writ. 
But although the election may commence from the time when any 
particular individual is announced as a candidate it does not follow that 
the work of the election does begin then. Prom the time when a man 
l)ecome8 the adoi)ted candidate, he is in a position in which he may 
incur expenses f'jr the conduct and management of that election which 
iH still in the future {ibid. 189). The respondent had been adopted and 
acted as prospective candidate in July 1904, and the election was on 
January 16, 1906. 

In Maidstone, 1906, 5 O'M. & H. 208, Grantham, J., expressed the 
view that the election connnences at the time of the appointment of the 
Election Agent, and cannot, for the purposes of the Corrupt and Illegal 
Practices Prevention Act, begin before that time. He stated that his 
view was no doubt opposed to that of the judges for many years past, 
Imt it was 8up}X)rted by the provision that the election expenses are to 
Ije paid through the Election Agent. The expenses to be included in 
the return, according to this view, are the expenses of the election, and 



ELECTION EXPENSES 10:^ 

not in any way those of the candidate while he is going about the con- 
stituency and holding his meetings {iUcl. 209). On the other hand, 
Lawrance, J., said that he did not agree with his learned brother that 
the day when the election begins is necessarily the day when the agent 
is appointed, nor could he agree that one cannot have election expenses 
until one has got an Election Agent, otherwise all that a candidate 
would have to do would be to defer the appointment of his Election 
Agent, and to say that the debts previously contracted are not election 
del3ts. The principle to his mind was that if expenses are primarily or 
principally incurred for the promotion of the interests of the candidate 
they are election expenses {ibid. 210). It is submitted that this is the 
correct view of the effect of the legislation. In this case the election 
took place on January 17, 1906, the respondent being formally adopted 
as candidate by the Conservative Association on December 27, 1905, on 
which date he appointed his Election Agent, and the Conservative 
Association dissolved. Expenses of meetings and other expenses in- 
curred by the Association before that date were held not to be election 
expenses {ibid. 207, 211). 

In Bodmin, 1906, 5 O'M. & H. 226, it was proved that the respondent 
came before the constituency in October 1903, from which time until 
the election on January 22, 1906, a series of meetings were held at 
which resolutions in support of his candidature were passed, and that 
the expenses of over forty of such meetings had been omitted from the 
return. Grantham, J., in again dissenting from the earlier authorities, 
said : " The question is whether, as soon as a man becomes a candidate, 
the expenses he begins to incur are election expenses and must be 
returned accordingly. In my judgment this is a wrong principle 
altogether, and the Act of 1883 never intended that they should be so 
considered. When the Act was passed there was no intention of 
making a candidate liable for election expenses when he was going 
round his constituency to advocate his cause in view of an approaching 
election. The respondent, in my opinion, properly and legitimately 
incurred these expenses in holding meetings as a candidate and in 
educating the electors, but although his primary object may have been 
to secure his own return, they were not expenses incurred by him with 
reference to the conduct and management of his election " {ibid. 227, 
228). Upon this point Lawrance, J., differed, and stated that if it had 
been necessary to determine the point (which, in view of the findings of 
tlie judges upon other charges, it was not), he should have felt bound 
to come to tlie conclusion that this election began months before the 
issue of the writ, and that the expenses of all these meetings ought to 
have been returned {ibid. 228). A peculiar feature of this case was that 
a person had acted as the respondent's Election Agent from October 
1903, and had so described himself, and had expended money upon the 
meetings, but eventually in December 1905, just before the election, 
another individual was formally appointed Election Agent. Having 
regard to the various decisions, the judgment of Lawrance, J., appears to 
express the sounder view and the one which would probably be followed 
by election judges in future petitions, though, as we have before indi- 
cated, in eacli case the period at which an election begins for the 
purpose of involving the candidate's liability for election expenses can 
only be determined by reference to the particular circumstances. 

Expenses before Appointment of Election Agent. — Where, as ia 



104 



ELECTION EXPENSES 



frefjuently the case, election expenses are incurred before the appoint- 
ment of tlie Election Agent, the payments in respect of the same nmst 
nevertheless be made by him. There is nothing in the Act which 
forbids a candidate to incur election expenses even before the issue of 
the writ ; but if such expenses are incurred they must be paid by the 
Election Agent, who is responsible for the proper return of all election 
expenses (see Rochester, 1892, 4 O'M. & H. 159 ; see also Ipswich, 1886, 
ibul. 73). 

In considering the provision that the election expenses are to be 
paid tlirough the Election Agent in a recent case Grantham, J., said : 
" How can a candidate, months before he appoints his Election Agent, 
pay his expenses through him ? Of course it is impossible." And 
expressed the view that there is no election before the agent is 
appointed (Maidstone, 1906, 5 O'M. & H. 209). Lawrance, J., in 
dissenting from this view, stated the principle to be, that upon the 
date on which an agent is appointed, if any debts which are properly 
election debts have been contracted, they must be paid through the 
agent, or at any rate debited to him, so that he may include them in his 
return of election expenses (ibid. 210). This undoubtedly represents 
the trend of the earlier decisions. 

Maximum Expenditure. — No sum may be paid and no expense 
incurred by a candidate or his Election Agent, whether before, during, 
or after an election, on account of or in respect of the conduct or 
management of the election, in excess of any maximum specified in 
Sched. I. of the Corrupt and Illegal Practices Prevention Act, 1883 
(see ibid. s. 8). In a borough the maximum amount of expenses (other 
than personal expenses and the returning officer's charges) where the 
number of electors on the register does not exceed 2000 is £350, and 
where the number of electors exceeds 2000 the maximum is £380, and 
an additional £30 for every complete 1000 electors above 2000. In a 
county where the number of electors does not exceed 2000 the maximum 
is £650, and where the number exceeds 2000 the maximum is £710, and 
an additional £60 for every complete 1000 electors above 2000. In 
Ireland the amounts are different (ibid. Sched. I. Part IV.). 

In the case of a joint candidature, where there are two joint candi- 
dates at an election, the maximum amount of expenses for each of the 
joint candidates is reduced by one-fourth, or if there are more than two 
joint candidates by one-third (see ibid. Sched. I. Part V. (3) and (4) ; 
see also Candidate). 

Legal Expenses. — The expenses that may legally be incurred by 
candidates at parliamentary elections are set forth in Sched. I. of the 
Act of 1883. 

Tliese include the remuneration of the persons whom the Act allows 
to Ikj employed for payment, namely, the Election Agent, in counties 
one sub-agent within each polling station, one polling agent in each 
polling station, and certain clerks and messengers varying in counties 
and boroughs according to the number of the electors. The employ- 
ment of any person for payment in connection with the election, for any 
purjwse or in any capacity otherwise than is authorised by the Act, is 
an illegal employment (see ibid. s. 17, and Sched. I. Part I. ; see also 
Illkgal Pkactices). 

In addition to the expenses incurred in the employment of persons 
legally employed for payment, the following are legal expenses :— 



ELECTION EXPENSES 105 

(1) Sums paid to the returning officer for his charges, not exceeding 
tlie amount authorised by the Parliamentary Elections (Returning 
Officers) Act, 1875, 38 & 39 Vict. c. 84 (see ReturniTuj Officer); 

(2) The personal expenses of the candidate ; 

(3) The expenses of printing and advertising, and the expenses of 
publishing, issuing, and distributing addresses and notices ; 

(4) The expenses of stationery, messages, postage, and telegrams ; 

(5) The expenses of holding public meetings ; 

(6) In a borough the expenses of one or more committee rooms, 
according to the number of electors ; 

(7) In a county the expenses of a central committee room, and one 
or more committee rooms for each polling district, according to the 
number of electors. See ibid. Sched. I. Part II. 

Expenses in respect of miscellaneous matters, other than those above 
mentioned, not exceeding in the whole the maximum amount of £200, 
provided that such expenses are incurred in respect of matters which do 
not infringe any statute {ibid. Sched. I. Part III.) ; and, in certain cases, 
payments for the conveyance of voters by sea, which may be in addition 
to the maximum amount of expenses allowed by the Act (see ibid. s. 48), 
are also legal expenses. 

Illegal Expenses. — The following are expressly prohibited, and 
payments in respect of them are illegal : — 

(1) The conveyance of electors to and from the poll {ibid. s. 7 (1) (a) ; 
see, however, ihid. s. 48, as to conveyance of electors by sea in certain 
cases) ; 

(2) Payments to electors, other than advertising agents, on account 
of the exhibition of addresses, bills, or notices {ibid. s. 7 (1) (b)) ; 

(3) Payments to corruptly induce or procure any person to withdraw 
from being a candidate at an election {ibid. s. 15); 

(4) Payments on account of bands of music, torches, flags, banners, 
cockades, ribbons, or other marks of distinction {ibid. s. 16 (1)) ; 

(5) The hire of committee rooms in licensed premises or public 
elementary schools {ibid. s. 20) ; 

(6) Any payment in excess of the maximum allowed by the Act 
{ibid. s. 8 (1)), or for any purpose not authorised by the Act {ibid. s. 17 
(1)), or knowingly providing money for any such purposes, or to replace 
any money so expended {ibid. s. 13). And any payments of election 
expenses (except such as are allowed by sec. 31) made otherwise than 
by the Election Agent {ibid. s. 28 ; see Illegal Practices). 

Payment of Election Expenses. — All the election expenses, with 
the exception of the personal expenses of the candidate and certain 
petty expenses, must be paid by the Election Agent. ' 

No payment and no advance or deposit is to be made by a candi- 
date, or by any agent on his behalf, or by any other person at any time, 
whether before, during, or after the election, in respect of any expenses 
incurred on account of or in respect of the conduct or management of 
the election, otherwise than by or through the Election Agent of such 
candidate, whether acting in person or by a sub-agent ; and all money 
provided by any person other than the candidate for any expenses 
incurred on account of or in respect of the conduct or management of 
the election, whether as gift, loan, advance, or deposit, must be paid to 
the candidate or his Election Agent, and not otherwise. This does not, 



106 ELECTION EXPENSES 

however, apply to a tender of security to, or any payment by, the return- 
ing otticer, or to any sum disbursed by any person out of his own money 
for any small expense legally incurred by himself, if such sum is not 
repaid' to him (Corrupt and Illegal Practices Prevention Act, 1883, 
8. 28 (1)). A person making any payment, advance, or deposit in 
contravention of this section, or paying in contravention of this section 
any money so provided, is guilty of an illegal practice {ibid. s. 28 (2); 
see also Illegal Practices). In Monmmoth, 1901, 5 O'M. & H. 170, 
where it was proved that a payment in respect of a newspaper adver- 
tisement of the respondent's election address had been made by the 
respondent's private secretary, and when it was discovered that the 
payment was an election payment, the money was returned to the 
respondent and afterwards paid through the Election Agent, it was 
lield that there was no offence within the statute. 

Every payment made by an Election Agent, whether by himself or 
by a sub-agent, in respect of any election expenses, must, except where 
less than forty shillings, be vouched for by a bill stating the particulars, 
and by a receipt {ibid, s 29 (1)). 

Claims against a candidate or his Election Agent in respect of 
election expenses must be sent in to the Election Agent within fourteen 
days after the day on which the candidates returned are declared 
elected, otherwise such claims are barred and must not be paid {ibid. 
8. 29 (2) and (3)), unless on application to the Court by the claimant, 
or by the candidate, or his Election Agent, leave to pay the same be 
obtained {ibid. s. 29 (9)). 

All election expenses must be paid within twenty-eight days after 
the day on which the candidates returned are declared elected {ibid. 
8. 29 (4) and (5)). 

If the Election Agent disputes a claim, or refuses or fails to pay it 
within the twenty-eight days, it is deemed to be a disputed claim, and 
the claimant may, if he thinks fit, sue for it in any competent Court, 
and any sum paid by the candidate or his agent in pursuance of the 
judgment or order of such Court is deemed to be paid within the time 
limited by the Act, and to be an exception from the provisions of the 
Act requiring claims to be paid by the Election Agent {ibid. s. 29 (8)). 
As to the taxation of disputed claims in respect of election expenses, 
see ibixl. s. 30. As to claims by the Election Agent for his remuneration, 
see iUd. s. 32 (1) ; see also Election Agent. 

Personal Expenses of Candidate. — The candidate may himself 
pay any personal expenses incurred by him on account of or in con- 
nection with or incidental to the election to an amount not exceeding 
one Inindred pounds, but any further personal expenses so incurred by 
him must be paid by his Election Agent {ibid. s. 31 (1». The candi- 
date must send to the Election Agent, within the time limited by the 
Act for sending in claims {i.e. fourteen days after the day on which the 
caiididatos returned are declared elected, ibid. s. 29 (3)), a written 
statement of the amount of personal expenses so paid by him {ibid. s. 31 
(2)). It is to be observed that there is no limit whatever to the amount 
of personal exi^enses which may be incurred by a candidate ; the statute 
merely recjuires that if such expenses exceed one hundred pounds the 
excess must l>e paid by the Election Agent. 

In Jlochenter, 1892, wliether the amount i)aid by a candidate for hire 
of a house in the constituency during the election must be returned as 



ELECTION EXPEXSES 107 

the personal expenses of the candidate was regarded as doubtful (see 
Day El. Gas. 103, 'per Cave, J.), but sec. 64 of the Act of 1883 defines 
I the expression "personal expenses" as used with respect to the ex- 
penditure of any candidate so as to include his reasonable travelling 
expenses, and the reasonable expenses of his living at hotels or else- 
where for the purposes of, and in relation to, the election. 

Petty Expenses. — Any person may, if so authorised in writing by 
the Election Agent, pay any necessary expenses for stationery, postage, 
telegrams, and other petty expenses, to a total amount not exceeding 

■ that named in the authority, but any excess above that amount must be 
paid by the Election Agent {ihid. s. 31 (4)). A statement of the par- 
ticulars of payments made by any person so authorised must be sent to 
the Election Agent within the time limited by the Act for the sending 
in of claims {i.e. fourteen days from the election), and must be vouched 

' for by a bill containing the receipt of that person {ihid. s. 31 (4)). 

PiETURX AND DECLARATION OF ELECTION EXPENSES. — The Election 
Agent of every candidate at the election must, within thirty-five days 
after the day on which the candidates returned are declared elected, 
transmit to the returning officer a true return of the election expenses 
of that candidate {ihid. s. 33 (1)). Such return must contain state- 
ments of all payments made by the Election Agent, with all the bills 
and receipts ; of the amount of personal expenses paid by the candidate ; 
of sums paid to the returning officer for his charges ; of all disputed 
claims ; of all unpaid claims in respect of which application has been or 
is about to be made to the Court ; and of all money, etc., received by 
the Election Agent from the candidate or any other person for election 
expenses {ibid.) ; or, when the candidate is his own Election Agent, a 
statement of all money paid by him {ihid. s. 33 (3)). 

The return must be accompanied by a declaration made by the 
Election Agent before a justice of the peace {ihid. s. 33 (2)). 

The candidate must, at the time that the Election Agent transmits 
the return, or within seven days afterwards, transmit to the returning 
officer a declaration respecting election expenses {ihid. s. 33 (4)). 

The return of election expenses and the declarations respecting 
election expenses should be in the following forms, which are contained 
in Sched. II. of the Act of 1883. 



Form of Declaration as to Expenses. 
Fai'm fm' Candidate. 

I , having been a candidate at the election for the county 

[or borough] of on the day of , do hereby 

solemnly and sincerely declare that I have examined the return of 
election expenses [about to be] transmitted by my Election Agent [m' if 
the candidate is his own Election Agent, " by me "] to the returning officer 
at the said election, a copy of which is now shown to me and marked 
, and to the best of my knowledge and belief that return is 
correct ; 

And I further solemnly and sincerely declare that, except as appears 
from that return, I have not, and to the best of my knowledge and 



108 ELECTION EXPENSES 

belief no person, nor any club, society, or association, has, on my behalf, 
made any payment, or given, promised, or offered any reward, office, 
employment, or valuable consideration, or incurred any liability on 
account of or in respect of the conduct or management of the said 
election ; 

And I further solemnly and sincerely declare that I have paid to 
my Election Agent [if the candidate is also his own Election Agent, lean 
out ** to my Election Agent "] the sum of pounds and no mora 

for the purpose of the said election, and that, except as specified in the 
said return, no money, security, or equivalent for money has to my 
knowledge or belief been paid, advanced, given, or deposited by anyone 
to or in the hands of my Election Agent [w if the candidate is his own 
EUction Agent, " myself " ] or any other person for the purpose of 
defraying any expenses incurred on my behalf on account of or in 
respect of the conduct or management of the said election ; 

And I further solemnly and sincerely declare that I will not, except 
so far as I may be permitted by law, at any future time make or be 
party to the making or giving of, any payment, reward, office, employ- 
ment, or valuable consideration for the purpose of defraying any such 
expenses as last mentioned, or provide or be party to the providing of 
any money, security, or equivalent for money for the purpose of de- 
fraying any such expenses. 

Signature of declarant. C. D. 

Signed and declared by the above-named declarant on the 
day of , before me. 

(Signed) E. R, 

Justice of the Peace far 



Form fm- Election Agent. 

I» » ^eing Election Agent to , candidate at the 

election for the county [or borough] of , on the day 

^^ > do hereby solemnly and sincerely declare that I have 

examined the return of election expenses about to be transmitted by 
me to the returning officer at the said election, and now shown to me 
and marked , and to the best of my knowledge and belief that 

return is correct; 

And I hereby further solemnly and sincerely declare that, except 
as appears from that return, I have not and to the best of my know- 
ledge and belief no other person, nor any club, society, or association 
ha« on behalf of the said candidate made any payment, or given, 
promised, or ofiered any reward, office, employment, or valuable con- 
•ideration, or incurred any liability on account of or in respect of the 
conduct or management of the said election ; 

And I further solemnly and sincerely declare that I have received 
from the said candidate pounds and no more [or nothing] 

for the purpose of the said election, and that, except as specified in the 
•aid return sent by me, no money, security, or equivalent for money 



ELECTION EXPENSES 109 

has been paid, advanced, given, or deposited by any one to me or in my 
hands, or, to the best of my knowledge and belief, to or in the hands 
of any other person for the purpose of defraying any expenses incurred 
on behalf of the said candidate on account of, or in respect of the con- 
duct or management of the said election. 

Signature of declarant. A. B. 

Signed and declared by the above-named declarant on the 
day of , before me. 

(Signed) E. R, 

Justice of the Peace foi' 



Form of Eeturn of Election Expenses. 

I, A. B., being Election Agent to C. D., candidate at the election for 
the county [oi- borough] of on the day of , 

make the following return respecting election expenses of the said 
candidate at the said election [or where the candidate has named himself 
as Election Agent, "I, C. Z)., candidate at the election for the county 
[or borough] of on the day of , acting as my 

own Election Agent, make the following return respecting my election 
expenses at the said election " ]. 



Eeceipts.^ 

Received of [the above-named candidate] [or where the candidate^ « 
is his own Election Agent, " Paid by me "] . ./ 

Received oi J. K. . 

[Here set aid the name and description of every person, club, 
society, (yr association, whether the candidate or not, from whom 
any money, securities, or equivalent of money was received in 
respect of exjyenses incurred on account of or in connection with 
or incidental to the above election, and the amount received from 
each person, club, society, m' association separately.] 

Expenditure. 

Paid to E. F., the returning officer for the said county [&i'\ 
borough] for his charges at the said election . ./ 

Personal expenses of the said C. D., paid by himself [w if\ 
the candidate is his oiun Election Agent, " Paid by me as I £ 
candidate"] . . . • ■ -j 
Do. do., paid by me [or if the candidate\ 
is his own Election Agent, add "acting as Election IX 
Agent"] J 



110 ELECTION EXPENSES 

Received by me for my services as Election Agent at the^ 

said election [w if the candidate is his own Election Agent, V£ 

leave out this item] ' • • • J 

Paid to G. H. &8 sub-agent of the polling district of . £ 

[The name and description of each sifh-agent and the sum 
paid to him must be set out separately/.] 

Paid to as polling agent . . . . £ 

Paid to as clerk for days' services . £ 

Paid to as messenger for days' services . £ 

[The names and descriptions of every polling agent, clerk, and 
messenger, and tJie sum paid to each, must be set out separately 
either in the account m' in a separate list annexed to and 
referred to in the account, thus, " Paid to polling agent (o)' as 
the case may be) as per annexed list, £ ."] 

Paid to the following persons in respect of goods supplied 

or work and labour done : — 

To F. Q. (printing) . . . . , £ 

To M iV. (advertising) . . . , £ 

To li. S. (stationery) . . . , £ 

[The name and description of each person, and the nature 
of the goods supplied, oi' the woi'Tc and labour done by each, 
must be set out separately either in the account or in a separate 
list annexed to and referred to in the account.] 
Paid for postage . . . . . , £ 

Paid for telegrams . . , . . , £ 

Paid for the hire of rooms as follows : — 

For holding public meetings . . , £ 

For committee rooms . . . , £ 

[A room hired for a public meeting or for a committee room 
must be named m- described so as to identify it ; and the name 
and desaiption of every person to whom any payment 2vas 
made foi- each such room, together with the amount paid, must 
he set out separately either in the account oi' in a separate list 
annexed to and referred to in the account.] 

Paid for miscellaneous matters, namely . . , £ 

[The name and description of each person to whom any sum is 
paid, and fJie reason for ivhich it was paid to him, must be set 
out separately either in the account or in a separate list annexed 
to and referred to in the account.] 

In addition to the above, I am aware, as Election 
Agent for C. D. [or if the candidate is his 02(m Election 
Agent, leave out " as Election Agent for C. D."] , of the 

following disputed and unpaid claims, namely— 
Disputed claims — 

By T. U.foT £ 

[Here set out the name and description of each person ivhose 
daim is disputed, the amount of the claim, and the goods, woi'k, 
or other matter on the ground of which the claim is based.] 



I 



ELECTION EXPENSES 111 

Unpaid claims allowed by the High Court to be paid 
after the proper time or in respect of which application 
has been or is about to be made to the High Court — 

By M. 0. for . . . . . £ 

[Here state the name and description of each yerson to whom 
any such claim is due, and the amount of the claim, and the 
goods, wai'k, and labour or other matter on account of which the 
claim is due.'] 

(Signed) A. B. 

Form of Declaration as to Expenses. 

Faim for Candidate where declared a Candidate or nominated in his absence 
and taking no part in the Election. 

I, , having been nominated [w having been declared by 

others] in my absence [to be] a candidate at the election for the county 
or borough of held on the day of , do 

hereby solemnly and sincerely declare that I have taken no part what- 
ever in the said election. 

And I further solemnly and sincerely declare that [or with the 
exception of ] I have not, and no person, club, society, or 

association at my expense has, made any payment or given, promised, 
or offered, any reward, office, employment, or valuable consideration, or 
incurred any liability on account of or in respect of the conduct or 
management of the said election. 

And I further solemnly and sincerely declare that [m- with the 
exception of ] I have not paid any money or given any 

security or equivalent for money to the person acting as my Election 
Agent at the said election, or to any other person, club, society, or 
association on account oi or in respect of the conduct or management 
of the said election, and that [or with the exception of ] I 

am entirely ignorant of any money, security, or equivalent for money 
having been paid, advanced, given, or deposited by any one for the 
purpose of defraying any expenses incurred on account of or in respect 
of the conduct or management of the said election. 

And I further solemnly and sincerely declare that I will not, except 
80 far as I may be permitted by law, at any future time make or be 
party to the making or giving of any payment, reward, office, employ- 
ment, or valuable consideration for the purpose of defraying any such 
expenses as last mentioned, or provide or be party to the providing of 
any money, security, or equivalent of mone}^ for the purpose of defray- 
ing any such expenses. 

Signature of d^eclarant, CD. 

Signed and declared by the above-named declarant on the 
day of , before me. 

(Signed) E. F. 

Justice of tlie Peace for 



112 ELECTION EXPENSES 

As to tlie consequences of a candidate or Election Agent knowingly 
making a false declaration, see Corrupt Practices. 

If without some authorised excuse a candidate or an Election Agent 
fails to comply with the requirements of the Act as to the return and 
declaration respecting election expenses, he is guilty of an illegal 
practice (see ibid. s. 33 (6)). As to what is an authorised excuse for 
non-compliance with such provisions, and as to the granting of relief 
by the Court in such case, see ibid. s. 34 ; see also Eelief (Electoral). 

The returning officer, within ten days after receiving the return 
respecting election expenses, must publish a summary of it in at least 
two newspapers circulating in the county or borough for which the 
election was held, accompanied by a notice of the time and place at 
which the return and declarations can be inspected. The return and 
declarations must be kept by the returning officer for two years, and 
are open to inspection by any person on payment of a fee of one shilling 
{ibid. s. 35). 

Municipal and other Elections. — Expenditure at municipal elec- 
tions was first placed under statutory regulation by the Municipal 
Elections (Corrupt and Illegal Practices) Acts, 1884, 47 & 48 Vict. c. 70. 
That Act contains provisions with respect to expenses at municipal 
elections which in many respects are similar to those relating to parlia- 
mentary elections. There is, however, no provision for the appointment 
of a paid Election Agent at municipal elections. At such elections, 
therefore, all duties with regard to the payment and return of election 
expenses rest directly with the candidate, who is responsible for the 
same. The candidate at an election of councillors is, in fact, generally 
his own Election Agent ; but he may obtain the assistance of an unpaid 
agent; the employment for payment of any persons for election 
purposes, except certain clerks and messengers, and one polling agent 
in each polling station, would be an illegal employment (see ibid. s. 13). 

It is most important to observe that, except in the City of London, 
election expenses may legally be incurred by or on behalf of any candi- 
date only in the case of an election for the office of councillor. Sec. 5 
(1) of the Act of 1884 enacts that, subject to such exception as may be 
allowed in pursuance of the Act, no sum shall be paid and no expense 
shall be incurred by or on behalf of a candidate at an election, whether 
before, during, or after an election, on account of or in respect of the 
conduct or management of such election, save that in the case of the 
election of a councillor a sum may be paid and expense incurred not in 
excess of the maximum amount following — that is to say, the sum of 
twenty-five pounds, and if the number of electors in the borough or 
ward exceeds 500, an additional amount of threepence for each elector 
above the first 500 electors. Any candidate or agent of, a candidate or 
person who knowingly acts in contravention of this section is guilty of 
an illegal practice {ibid. s. 5 (2)). Where there are two or more joint 
candidates at an election, the maximum amount of the expenses for 
each of such joint candidates is to be reduced by one-fourth, or if there 
are more than two joint candidates by one-third {ibid. s. 5 (3)). 

The Act of 1884 applies to municipal elections in the City of 
London, subject to certain exceptions {ibid. s. 35). See also as to 
municipal elections in the City of London, the City of London Ballot 
Act, 1887, 50 Vict. c. xiii. s. 11. 

The provisions of the Act of 1884 with regard to election expenses 



ELECTION PETITION 



113 



at municipal elections are, with the necessary modifications, applied to 
County Council elections by the Local Government Act, 1888, 51 & 52 
Vict. c. 41, s. 75. 

The same provisions, also subject to adaptations, alterations, and 
exceptions made by rules framed under the Local Government Act, 
1894, are applied to Parish and District Council elections, elections of 
Guardians, and of Metropolitan Borough Councils, by the Local Govern- 
ment Act, 1894, 56 & 57 Vict. c. 73, s. 48 (3), and London Government 
Act, 1899, 62 & 63 Vict. c. 14, s. 2 (5). At these elections, however, 
there is no limit, as at municipal elections, to a candidate's expenses, 
and no limit of time within which claims for election expenses are to be 
sent in or paid, nor has any return or declaration of expenses to be 
made (see Municipal Elections (Corrupt and Illegal Practices) Act, 
1884, s. 37; Local Government Act, 1894, s. 48 (3) (h); London 
Government Act, 1899, s. 2 (5); see also Parish Councillors Election 
Order, 1901 ; Eural District Councillors Election Order, 1898 ; Urban 
District Councillors Election Order, 1898 ; Guardians Elections (outside 
London) Election Order, 1898 ; Guardians Elections (in London) Election 
Order, 1898 ; Metropolitan Borough Councillors Election Order, 1903). 

Election Petition. 

TABLE OF CONTENTS. 
I. PARLIAMENTARY ELECTION PETITIONS. 



Historical Introduction— 




Constitution of Election Court 


130 


Former Modes of Trial of Elec- 




Powers of Election Court 


131 


tion Petitions 


114 


TJie Registrar .... 


131 


Modern Practice . 


114 


Notice of Trial 


131 


The Petition — 




Place of Trial 


131 


Grounds of Petition 


115 


Reception of Election Judges . 


132 


Petitioners 


117 


Expenses of Election Court 


132 


Respondents . 


117 


Postponement of Trial . 


132 


Tirae for Petitioning 


118 


Adjournment of Trial 


132 


Form of Petition . 


119 


Evidence .... 


133 


Presentation and Service oj 


r 


Witnesses .... 


134 


Petition 


120 


Certificates of Indemnity . 


135 


Security for Costs . 


121 


Scrutiny .... 


136 


Interlocutory Proceedings— 




Recriminatory Case 


137 


Hearing of Interlocutory Appli- 




Reservation of Points of Law . 


137 


cations 


123 


The Public Prosecutor 


138 


Amendment of Petition . 


123 


Prosecution before Election 




Particulars 


124 


Court 


139 


Inspection of Ballot Papers 




Costs 


139 


etc 


126 


Certificate and Report of 




Recount .... 


126 


Election Court — 




Withdrawal of Petition . 


127 


Certificate .... 


141 


A hatement of Petition 


129 


Report as to Corrupt and Illegal 




Special Case . 


129 


Practices .... 


142 


Trial OF Petition— 




Special Report 


144 


Election List . 


. 130 


Relief 


144 


II. MUNICIPAL AN 


D oth: 


ER ELECTION PETITIONS. 




Municipal Elections— 




Time for Petitioning 


145 


Former Procedure . 


144 


Form of Petition^ etc. 


146 


Present Practice 


144 


Security for Costs 


140 


Procedure by Quo Warranto 


. 145 


Interlocutory Matters 


146 


Gromids of Petition 


. 145 


Special Case .... 


146 


Petitioners 


. 145 


Constitution of Election Court . 


147 


Respondents . 


. 145 


Powers of Election Court . 


147 


VOL. V. 




8 





114 



ELECTION PETITION 



Expenses of Election Court 
Place of Trial 

Trial 

Certificate and Report of Elec- 
tion Court .... 
JUienxUion of Points of Law . 
Prosecution for Election Offences 



147 
148 
148 

148 
148 
149 



Municipal Elections in City of 
London . . • . . 149 

County Council Elections . 149 

Parish and District Council 
Elections, etc. . . .149 

Metropolitan Borough Council 
Elections . . . .149 



I. PAKLIAMENTAKY. 

Historical Introduction. — Former Modes of Trial of Election 
Petitions. — Tlie right of determining the validity of elections was in 
the earliest times of parliamentary history apparently exercised by the 
Kin<', assisted by the Lords or by the judges (see Prynne, Register of 
Parliamentarij Writs, Part II. pp. 118, 119, 122; ibid. Part IV. p. 259; 
Kot. Pari. vol. iii. p. 530). By a statute of 1410 (11 Hen. iv. c. 1; see 
Statutes of the Realm, vol. ii. p. 162), the judges of assize were empowered 
to inquire into undue returns. The first assertion of jurisdiction by the 
House of Commons was probably in 1586 (see Stubbs, Const. Hist., vol. 
iii. p. 423 ; Hallam, Const. Hist., 3rd ed., vol. i. p. 374). But the right 
of determining the validity of elections, and of deciding all questions as 
to disputed elections, has undoubtedly been exercised by the House of 
I'ommons, at any rate since the decision in the case of Goodwin and 
Fortescue in 1604 {Parliamentary Hist, vol. i. p. 998). 

The trial by the Commons of disputed returns was at first before 
a Committee of Privileges and Elections nominated by the House ; but 
iifter 1672 it took place before a Committee of the whole House, the 
trial of an election petition being then virtually decided by a party 
4livision. In 1770 Grenville's Act, 10 Geo. iii. c. 16, provided for the 
trial of controverted elections by a Select Committee ; the number of 
the Committee was reduced and the mode of its appointment altered 
in 1839 by Sir Eobert Peel's Act, 4 & 5 Vict. c. 58, and again in 1848 
by 11 & 12 Vict. c. 98. 

Modern Practice. — The Parliamentary Elections Act, 1868, 31 & 32 
Vict. c. 125, transferred the trial of election petitions to the judges of 
the Common Law Courts for the time being upon the rota of election 
judges. Under that Act the trial was to be before one judge of the 
Court of Common Pleas (s. 11), but now under the Parliamentary 
Elections and Corrupt Practices Act, 1879, 42 & 43 Vict. c. 75, s. 2, 
the trial of an election petition must be before two judges, and by 
the Judicature Act, 1881, 44 & 45 Vict. c. 68, s. 13, the judges to be 
placed on the rota for the trial of election petitions under the pro- 
visions of the Parliamentary Elections Act, 1868, are to be selected from 
the judges of the King's Bench Division of the High Cou»t of Justice. 

Though the trial of a petition relating to any controverted return 
now, therefore, takes place before two judges of the King's Bench 
Division for the time being upon the rota of election judges, the House 
of Commons nevertheless still retains the right of deciding as to the 
existence of legal disqualifications in persons returned as members, and 
of declaring any seat to be vacant in consequence of such disqualifica- 
tion ; and there are several instances of the exercise of this right in 
recent times (see May, Parliamentary Practice, 11th ed., pp. 656-658; 
Ilogers on Elections, 18th ed., vol. ii. p! 193). This right of the House of 
CommoMH to resolve that a seat is vacant is expressly recognised by the 



ELECTION PETITI0:N" 115 

Parliamentary Elections Act, 1868 (see s. 38 (3)). With this exception, 
however, no election or return to Parliament can now be questioned 
except by petition in accordance with the provisions of that Act (see 
ibid. s. 50). 

The law and practice relating to election petitions now rests upon 
the Act of 1868, as modified and amended by subsequent legislation, 
and the Parliamentary Election Petition Eules made thereunder. The 
judges on the election rota were by sec. 25 of that Act empowered to 
make rules for the regulation of the practice, procedure, and costs of 
election petitions, and the trial thereof, and the certifying and reporting 
thereon. This power is now, however, transferred to the Rule Com- 
mittee of the judges (see Corrupt and Illegal Practices Prevention Act, 
1883, s. 56 (2)). The practice relating to election petitions, so far as 
such rules do not extend, is to be regulated, so far as may be, by the 
principles, practice, and rules on which the committees of the House of 
Commons previously acted in dealing with election petitions (see s. 26 
of the Act of 1868). 

A Select Committee of the House of Commons was appointed in 
1897 to inquire into the procedure and practice on parliamentary 
election petitions, and to report to the House if any changes were 
desirable therein. Having regard to the evidence given before that 
Committee, it seems desirable that some changes should be made in the 
Parliamentary Election Petition Rules with regard to the form of the 
petition, particulars, security for costs, etc., but no steps have as yet 
been taken to effect the necessary changes. 

The Petition. — Grounds of Petition. — A petition may be presented 
upon the ground that there has been an undue election or return, i.e. an 
election or return which is legally invalid. Any matters which would, 
if proved, avoid the election or the return will afford ground for the 
presentation of an election petition. Thus the commission by a candi- 
date or his agents of any corrupt or illegal practices, or of illegal 
payment, employment, or hiring; the existence of any disqualification 
in the candidate elected; or the fact that the majority of votes were 
in favour of the petitioner, are grounds for petitioning. So also the 
existence in the constituency of general corruption by means of bribery, 
or treating, or of general intimidation by rioting, violence, or undue 
spiritual infiuence (see Corrupt Practices ; Illegal Practices). 

An election petition may also be presented on the ground that a 
double return has been made (see s. 40 of the Act of 1868), or that no 
return has been made {ibid. s. 52). 

Moreover, any substantial infringement of the requirements of the 
Ballot Act, 1872, with regard to the holding of the election, the main- 
tenance of the secrecy of the ballot, the counting of the votes, and the 
return, if it be such as is calculated to affect the result of the election, 
would afford ground for the presentation of an election petition com- 
plaining of an undue election or return. Violations of the provisions of 
the Ballot Act, 1872 (see Ballot), have, indeed, been the grounds for 
petitioning in several cases (see Davies v. Lord Kensington, 1874, L. R. 
9 C. P. 720; Worcester, 1880, 3 O'M. & H. 184; East Clare, 1892, Day's 
El. Cas. 161 ; Islington, 1901, 5 O'M. & H. 120). 

In Hackney, 1874, 2 O'M. & H. 77, the election was held to be void 
on the ground that it was not conducted in accordance with the prin- 
ciples of the Ballot Act, it being proved that a large number of voters 



110 ELECTION PETITION 

were prevented from voting as no poll was taken at two of the polling 
places, and at others the polling was delayed. 

It is, however, provided by sec. 13 of the Ballot Act that no election 
shall be declared invalid by reason of a non-compliance with the rules 
contained in the schedule to the Act, or any mistake in the use of the 
forms if it appears to the tribunal having cognisance of the question 
that the election was conducted in accordance with the principles laid 
down in the body of the Act, and that such non-compliance or mistake 
did not affect the result of the election (see Woodward v. Sarsons, 1875, 
L R. 10 C. P. 733). In Worcester, 1880, 3 O'M. & H. 184, the petition 
alleged tliat the election was not conducted in accordance with th(^ 
principles laid down in the Ballot Act, and the rules and forms thereof, 
inasmuch as at certain of the polling places the polling did not com- 
mence at, or continue during, the hours required by law, by reason 
whereof certain electors were prevented from voting at the election ; in 
East Clare, 1892, 4 O'M. & H. 162, irregularities on the part of the 
returning and presiding officers in the performance of their duties were 
alleged in the petition; and in Islington, 1901, 5 O'M. & H. 120, tlir 
petition prayed that the election might be declared void on account oi 
breaches of the law relating to parliamentary elections committed by 
presiding officers and their assistants at certain polling stations whicli 
were kept open after 8 p.m., and at which ballot papers were delivered 
to and marked by voters after that hour. But in none of these three 
cases was it established in evidence that the irregularities or violation- 
of the Ballot Act had affected the result of the election. 

The determining principles in this class of case have been thus 
stated. An election ought not to be held void by reason of trans- 
gressions of the law committed without any corrupt motive by thi 
retuniing officer or his subordinates in the conduct of the election wher» 
the Court is satisfied that the election was, nevertheless, in substane< 
conducted under the existing law, and that the result of the election— 
that is to say, the success of the one candidate over the other — was not 
and could not have been affected by those transgressions. If, on the 
other hand, the transgressions of the law by the officials being admittetl 
the Court sees that the eflect was such that the election was not reallA 
conducted under the existing election laws, or it is open to reasonabL 
doubt whether these transgressions may not have affected the result. 
and it is uncertain whether the candidate who has been returned has 
really been elected by the majority of persons voting in accordance with 
the laws in force relating to the elections, the Court is then bound 
to declare the election void {Islington, 1901, 5 O'M. & H. 125, ycr 
Kennedy, J.). 

A j^tition praying for a recount and claiming the seat may In 
presented on the ground that the ballot papers have been miscounted 
(see Recount). This has been the f^round of petitioning in several 
cases (see Rmfrew, 1874, 2 O'M. & H.'^213 ; Halifax, 1893, 4 O'M. & II. 
203; Haggerstmi, 1896, 5 O'M. & H. 68 ; aS'^. George's, 1896, ihid. 89: 
Yiyrk, 1898, iUd. 118; Pembroke, 1901, ihid, 135; Christchurch, 1901. 
ibid. U1\ Aiqdehj, 1906, ihid. 237). 

A petition may also allege that the petitioner, the defeated candi- 
date, had a majority of lawful votes, and claim a scrutiny of votes, and 
claim the seat (see Schutiny). A scrutiny, as well as a recount, wa- 
claimed in York, 1898, 5 O'M. & H. 118; Pembroke, 1901, ihid. 13:- 
Chridclntrch, 1901, ilnd. 147; Appleby, 1906, iUd. 237). 



ELECTION PETITION 117 

It should here be observed that on an election petition the seat may 
or may not be claimed by, or on behalf of, the unsuccessful candidate ; 
but the seat can only be claimed on petition when it is alleged that the 
person for whom the seat is claimed had a majority of lawful votes (see 
Monksioell v. Thompson, 1898, 1 Q. B. 479), and it must be recollected 
that recriminatory charges can be made by the respondent if the peti- 
tioner claims the seat, but not otherwise (see Parliamentary Elections 
Act, 1868, s. 53 ; and see Recriminatory Case, post). 

Petitioners. — An election petition, i.e. a petition complaining of an 
undue return or undue election of a member to serve in Parliament for 
a coimty or borough, may be presented by any one or more of the 
following persons: (1) Some person who voted, or who had a right 
to vote, at the election to which the petition relates (see Walsall, 
1892, Day's M. Cas. 1); or (2) some person claiming to have had a 
right to be returned or elected at such election; or (3) some person 
alleging himself to have been a candidate at such election (see s. 5 of the 
Act of 1868). A petition may be presented by any person who was a 
candidate at the election, and it has been held that a person who has 
been nominated as candidate may be a petitioner, even though he was 
legally disqualified for nomination {Harford v. Lynskey, [1899] 1 Q. B. 
852 ; see also Nomination). 

Any application to stay the proceedings or dismiss a petition on 
the ground that any petitioner is not duly qualified must be by a 
substantive motion, so that the petitioner may have an opportunity 
of being heard (see Stepney, 1892, Day's El. Cas. 10); the onus of 
proving that a petitioner is not qualified is upon the respondent 
( Walsall, 1892, ibid. 2). 

As to the substitution of petitioners on the abatement or withdrawal 
of a petition, see post under the heads Abatement of Petition, Withdrawal 
of Petition. 

Responxlents. — As a rule, the respondent is the person the validity of 
whose election is disputed. A petition may even be presented after the 
death of the member whose election is complained of {Tipper ary, 1875, 
3 CM. & H. 21). Two or more candidates may be made respondents to 
the same petition, and their case may, for the sake of convenience, be 
tried at the same time, but such petition is to be deemed to be a separate 
petition against each respondent (s. 22 of the Act of 1868). It is not, 
however, necessary to make all the successful candidates respondents, 
for a petition may be presented against some only of the persons returned 
at the election, although the ground of the petition is one aftecting the 
validity of the election as a whole (see Line v. Warren, 1885, 14 Q. B. D. 
548). A candidate who is unsuccessful at an election cannot be made 
a respondent against his will or without his consent (see Lovcring v. 
Dawson, 1875, L. K. 10 C. P. 711 ; see, however, Yates v. Leach, 1874, 
L R. 9 C. P. 605). Where an election petition clahns the seat for 
one of the defeated candidates, and on the trial of the petition it is 
decided that he was duly elected, a petition against his return cannot 
subsequently be presented (see Waygood v. James, 1869, L. R 4 C. P. 
361). 

The returning officer may in some cases be made a respondent. The 
Act of 1868 provides that where an election petition complains of the 
conduct of a returning officer, he is, for all the purposes of the Act, except 



118 ELECTION PETITION 

the admission of respondents in his place, to be deemed to be a respondent 
(s. 51). A retnrning officer will not, it has been said, be deemed a re- 
spondent unless some wilful misconduct is charged against him (see ;jer 
Cave. J., CirenceMer, 1893, Day's EL Cas. 3 ; see also Harmon v. Park, 
188o! 6 Q. B. D. at p. 328); but in a later case it has been held that a 
j>etition complaining of the conduct of a returning officer within sec. 51 
of the Act of 1868 does not necessarily mean wilful misconduct or wilful 
misfeasance, but that a returning officer may be properly made a party 
to a petition which complains of omissions or negligence on the part of 
the subordinates of the returning officer (see Islington, 1901, 5 O'M. & H. 
133-4). The proper course in such case would be for the petitioner to 
make the returning officer a party (see Halifax, 1893, Day's El. Cas. 21 ; 
Mingtm, 1901, 5 O'M. & H. 132). The returning officer should be made 
a respondent if it is intended to adduce evidence connecting him with 
corrupt practices (see Tamworth, 1869, 1 O'M. & H. 77), or to charge him 
with breaches of the law in relation to the ballot {Islington, 1901, 5 O'M. 
& H. 120, 132). 

If before the trial of the petition the respondent dies or is sum- 
moned to Parliament as a peer, or if the House of Commons have 
resolved that his seat is vacant, or if he gives proper notice to tlie 
Court that he does not intend to oppose the petition, notice of such 
event having taken place is to be given in the county or borough to 
which the petition relates, and within ten days after such notice is 
given, or such further time as the Court may allow, any person who 
might have been a petitioner at the election to which the petition 
relates may apply to the Court to be admitted as a respondent to 
oppose the petition, and such person is on application to be admitted 
accordingly, either with the respondent, if there be one, or in the place 
of the respondent; any number of persons, not exceeding three, may 
be so admitted (s. 38 of the Act of 1868, and Pvules 51 and 54). The 
respondent must give notice to the Court that he does not intend to 
oppose the petition by leaving notice thereof in writing at the office of 
the Master. The notice must be signed by the respondent, and given 
six days before the day appointed for the trial, exclusive of the day 
of leaving the notice (Eule 52). Upon such notice being left at the 
Master's office, the Master must forthwith send a copy of it by post to 
the petitioner or his agent, and to the sheriff or mayor, as the case may 
lie, who nmst cause the same to be published in the county or borough 
(Kule 53). A respondent who has given notice that he does not intend 
U) o})}X)8e'the petition is not allowed to appear or act as a party against 
such i>etition, and may not sit or vote in the House of Commons until 
the Court has reported to the House (s. 39). 

Time for Petitioning. — The petition must be presented \^ithin twenty- 
one days after tlie return of the member to whose election the petition 
relates, unless it questions the return or election upon an allegation of 
corrujit practices, and specifically alleges a payment of money or otlier 
reward to have been made by any member or on his account or with his 
privity since the time of such return, in pursuance or in furtherance of 
such corrupt practices, in which case the petition may be presented at 
any time witliin twenty-eight days after the date of such payment {ibid 
8. G (2)). The result is tluit, although a petition complaining of corrupt 
practices must l)e jiresented within twenty-one days after the return, 
yet if i>ayment8 are subsequently made, then the time of presenting tlie 



ELECTION PETITION 119 

petition is extended to within twenty-eight days of the last payment 
to which reference is made in the petition (see Kidderminster, 1874, 
2 O'M. & H. 172). As to the date of the return, see Hurdle v. Waring^ 
1874, L. K. 9 C. P. 435. 

Where the petition questions the return or the election upon an 
allegation of an illegal practice, it may, so far as respects such illegal 
practice, be presented (1) at any time before the expiration of fourteen 
days after the day on which the returning officer receives the return 
and declarations respecting election expenses by the member to whose 
election the petition relates and his Election Agent ; (2) if the petition 
specifically alleges a payment of money, or some other act, to have been 
made or done since the said day by the member or an agent of the 
member, or with the privity of the member or his Election Agent, in 
pursuance or in furtherance of the illegal practice alleged in the peti- 
tion, it may be presented at any time within twenty-eight days after 
the date of such payment or other act (Corrupt and Illegal Practices 
Prevention Act, 1883, s. 40 (1)). This applies in the case of an offence 
relating to the return and declarations respecting election expenses 
as if it were an illegal practice, and it applies also notwithstanding 
that the act constituting the alleged illegal practice amounted to a 
corrupt practice (ibid. s. 40 (3)). Where the return and declarations 
are received on different days, the day on which the last of them is 
received, and, where there is an authorised excuse for failing to make 
and transmit the same, the date of the allowance of the excuse is to be 
substituted for the day on which the same are received by the returning 
officer {ibid. s. 40 (4)). 

In reckoning time for the purpose of ascertaining these periods, 
Sundays, Christmas Day, Good Eriday, and any days set apart for 
a public fast or thanksgiving are excluded (see s. 49 of the 
Act of 1868; and s. 40 (5) of the Act of 1883; see also Pease v. 
Noincood, 1869, L. E. 4 C. P. 235; Hurdle v. Waring, 1874, L. E. 
9 C. P. 435). 

Form of Petition. — An election petition must state the right of the 
petitioner to petition within sec. 5 of the Act of 1868, and must also 
state the holding and result of the election, and briefly the facts and 
grounds relied on to sustain the prayer (Parliamentary Election Petition 
Eules, Eule 2). The petition must be divided into paragraphs, each of 
which, as nearly as may be, must be confined to a distinct portion of the 
subject, and every paragraph must be numbered consecutively, and no 
costs are to be allowed of drawing or copying any petition not substan- 
tially in compliance with this rule, unless otherwise ordered by the 
Court {ibid. Eule 3). It must conclude with a prayer, as, for instance, 
that some specified person should be declared duly returned or elected, 
or that the election should be declared void, or that a return may be 
enforced, as the case may be {ibid. Eule 4). The petition must be signed 
by the petitioner, or by all the petitioners, if more than one {ibid. Eule 4 ; 
Parhamentary Elections Act, 1868, s. 6). The petition should be 
in the form given in the Parhamentary Election Petition Eules, or 
to the like effect, and evidence need not be stated in the petition 
{ibid. Eules 5 and 6). In practice the petition is usually settled by 
counsel. 

The form of the petition must necessarily vary according to the 
< ircumstances of each particular case and the charges upon which 



120 ELECTION PETITION 

the petition is founded, but the general form given in Eule 5 is as 
follows : — 

General Form of Election Petition. 
In the High Court of Justice, King's Bench Division. 

The Parhamentary Elections Act, 1868. 

Election for [state the place], holden on the day of , 

, A.D. 

The Petition of A., of [w of A., of , and B., 

of , 05 the case may be], whose names are subscribed. 

1. Your petitioner A. is a person who voted [w had a right to vote, 

as the case jnay be] at the above election, [or claims to have 
had a right to be returned at the above election, or was a 
candidate at the above election] ; and your petitioner B. [here 
state in like manner the right of each petitioner]. 

2. And your petitioners state that the election was holden on 

the day of , A.D. , when A. B., 

C. D., and E. F. were candidates, and the Returning Officer 
has returned A. B. and C. D. as being duly elected. 

3. And your petitioners say that [liere state the facts and grounds on 

which the petitioners rely]. 
Wherefore your petitioners pray that it may be determined that the 
said A. B. was not duly elected or returned, and that the election was 
void [or that the said E. F. was duly elected and ought to have been 
returned, or as the case may be]. 

(Signed) 

A. 
B. 

Presentation arid Service of Petition. — The petition must be presented 
to the King's Bench Division of the High Court of Justice in England, 
and in Ireland to the Common Pleas Division (s. 5 of the Act of 1868, 
and Judicature Act, 1873, 36 & 37 Vict. c. 66, ss. 32 and 34). 

The presentation must be made by leaving the petition at the office 
of the Master nominated by the Lord Chief Justice of England (s. 6 (3) 
of the Act of 1868, and Rule 1). The Master or his clerk must, if 
required, give a receipt (for form of receipt, see Rule 1 of the Parlia- 
mentary Election Petition Rules). When the last day for presenting 
the i>etition happens to fall on a holiday, the petition may be put into 
the letter-box at the Master's office at any time during such day, but an 
affidavit, stating with reasonable precision the time when ^uch delivery 
waii made, must be filed on the first day after the expiration of the 
holidays (ibid. Rule 72). 

With tlie petition must also be left a copy of it (in practice four 
copies are left), and a writing signed by the petitioners, giving the names 
and addresses of their agents, or stating that they act for themselves, 
as the case may be ; and, in either case, giving an address within three 
miles from the General Post Office, at which notices addressed to them 
may be left. If no address is left, notices may be given by sticking up 
the same at the Master's office. The Master must enter the names and 
addresses so given in a book which is to be open to inspection. Upon 



ELECTION PETITION 121 

presentation of the petition, the Master is required to send a copy of it 
to the returning officer, with the name of the petitioner's agent and of 
the respondent's agent, and the address, if any, and the returning officer 
must pubHsh the same within the county or borough to which the peti- 
tion relates {ibid. Eules 1 and 9-12 ; and s. 7 of the Act of 1868). An 
agent employed for the petitioner or respondent must forthwith leave 
written notice of his appointment at the office of the Master, and 
service of notices, etc., upon such agents is sufficient for all purposes 
(Kule 59). 

Notice of the presentation of an election petition, and of the 
nature of the proposed security, accompanied with a copy of the peti- 
tion, must within five days, exclusive of the day of presentation, be 
served by the petitioner on the respondent (s. 8 of the Act of 1868, 
and Eule 13). 

Security for Costs. — At the time of the presentation of a petition, 
or within three days afterwards, security must be given on behalf of the 
petitioner for the payment of all costs, charges, and expenses that may 
l^ecome payable by him to any person summoned as a witness on his 
behalf, or to the member whose election or return is complained of {i.e. 
the respondent) {ibid. s. 6 (4)). 

The amount of the security required to be given under the Act of 
1868 is £1000 {ibid. s. 6 (5)). It should, however, here be observed that 
this amount having in recent parliamentary election petitions been found 
to be totally inadequate to meet the costs incurred, and the Election 
Court at present having no power to order further security to be given 
(see, for example, the judgments in Toiver Hamlets, 1896), this matter 
in particular was under consideration by the Committee of the House of 
Commons in 1897, though there has hitherto been no legislation upon 
the subject since the Act of 1868. 

The security must be given either by recognisance, to be entered 
into by any number of sureties not exceeding four, or by a deposit of 
money by payment into the Bank of England to the account of "The 
Tarliamentary Elections Act, 1868, Security Eund," or partly in one way 
•'nd partly in the other {ibid. s. 6 (5), and Eule 16). 

Notice of the nature of the proposed security must be served by 
me petitioner on the respondent at the same time as the notice of the 
presentation of the petition. 

When the security is by deposit of money paid into the account at 
the Bank of England a bank receipt or certificate for the same must be 
forthwith left at the Master's office (Eule 16). The Master is required 
to file such receipt or certificate, and keep a book open to inspection of 
all parties concerned, in which is to be entered from time to time the 
amount and the petition to which it is applicable (Eule 17). 

The recognisance as security for costs may be acknowledged before 
a judge at chambers or the Master in town, or a justice of the peace in 
the country ; and there may be one recognisance acknowledged by all 
the sureties, or separate recognisances by one or more as may be con- 
vpuient (Eule 18). 

Tlie recognisance must contain the name and usual place of abode of 
eacli surety, with such sufficient description as shall enable him to be 
found or ascertained (Eule 19). 

The recognisance may be in the following form, which is given in 
Rule 19 :— 






122 ELECTION PETITION 

Farm of Recognisance as Security fw Costs of Petition. 

Be it remembered that on the day of , in the year 

of our Lord 19 , before me [name and description] came A. B., of 
[name and desniptu/ti as above described] and acknowledged himself [or 
severally achnawkdged themselves] to owe to our Sovereign Lord the 
King the sum of one thousand pounds [or the following sums] (that is to 
say) the said C. D., the sum of £ ; the said E. F., the sum of 

£ ; the said G. H., the sum of £ \ and the said J. K., the 

sum of JB , to be levied on his [or their respective] goods and 

chattels, lands and tenements, to the use of our said Sovereign Lord 
the King, his heirs and successors. 

The condition of this recognisance is that if \here insert the na 
of all the petitiimers, and if moi-e than one, add, or any of them] sh 
well and truly pay all costs, charges, and expenses in respect of 
election petition signed by him [or them], relating to the [here insert the 
name of the borough, ai- county] which shall become payable by the said 
petitioner [m- petitioners, or any of them] under the Parliamentary ' 
Elections Act, 1868, to any person or persons, then this recognisance 
to be void, otherwise to stand in full force. 

(Signed) 

[Signature of sureties.] 

Taken and acknowledged by the above-named [names of sureties] on 
the day of at , before me. 

CD., 
A justice of the peace [w as the case may be]. 

The recognisance or recognisances, immediately after being acknow-, 
ledged, must be left at the Master's office by or on behalf of the 
petitioner in like manner as prescribed for the leaving of a petition. 

Where the security is given wholly or partially by recognisance, tli 
respondent may, within five days from the date of service of the notic 
of the petition and of the nature of the security, object in writing tu 
such recognisance, on the ground that the sureties or any of them arej 
insutticient (see Fe(tse v. Norivood, 1869, L. E. 4 C. P. 235), that a surety 
is dead or cannot be found or ascertained from the want of a sufficient 
description in the recognisance, or that a person named in the recog- 
nisance has not duly acknowledged the same (s. 8, and Rule 21). Aun 
objection to the security is to be heard and decided by the Master 
subject to appeal within five days to a judge, upon sumpions taken oiii 
by either party to declare the security sufficient or insufficient (s. 9, aiit 
Kule 23 ; as to the hearing of the summons, and as to the order thereon 
and costs, see Rules 24-29). If an objection to the security be allowed 
the petitioner may, within five days, remove the same by a deposit < 
Hucli a sum of money as may be deemed by the Master or judge b 
make the security sufficient ; such amount must be stated in tiie ordei 
of the Master or judge (Rule 26). 

If on objection made the security is decided to be insufficient, ant 
the objection is not removed as above mentioned, no further proceeding 
Clin 1)(; had on the petition; otherwise, on the expiration of the tinu 



ELECTION PETITION 123 

limited for making objections, or, after objection made on tbe sufficiency 
of the security being established, the petition is deemed to be at issue 

i(s. 9). 

In the event of no security being given, the petition is nugatory 

and remains upon the file untried, as was the case with three petitions 
presented in 1892-93 (Soitth Nottingham, East Nottingham, and Hercfmrl; 
see Day's EL Cas. 9), and this has occurred in other cases. 

As to applications to have the deposited security handed over in 
payment of the respondent's costs after the trial of the petition, see 
Stepney, 1892, 4 O'M. & H. 184; Lancaster, 1896, 5 O'M. & H. 52; St. 
\Gcmjcs, 1896, ^'S^fZ. 117. 
I 

Interlocutory Proceedings. — HeaHng of Interlocutory Ajyplications. 

— All interlocutory questions and matters (except as to the sufficiency 
I of the security, which is heard by the Master, see ante, and as to the 
i withdrawal of the petition, which must be before two election judges, see 
^ l}ost) are to be heard and disposed of before a judge, who is to have the 

same control over the proceedings in an election petition as a judge at 
• chambers in the ordinary proceedings of the High Court (Rule 44). If 
' practicable, such questions and matters must be heard and disposed of 
' by one of the judges upon the rota, if not, then by any judge at chambers 

(ibid; see also Salford, 1869, 19 L. T. K S. 502). 

A copy of every order, other than an order giving further time for the 

delivery of particulars or for costs only, must be forthwith filed witli 
; the Master by the party obtaining the order, and produced at the trial 

by the Registrar, stamped with the official seal (Ptule 69). 

Amendment of Petition. — Any election petition presented within the 

( prescribed time 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 an allegation of that illegal practice can 

, be presented (Corrupt and Illegal Practices Act, 1883, s. 40 (2)). This 

applies to an offence relating to the return and declarations respecting 

' election expenses in like manner as if it were an illegal practice, and it 

'-' also applies notwithstanding that the act constituting the alleged illegal 

practice amounted to a corrupt practice {ibid. s. 40 (3) ; see also Biickrosc, 

1886, 4 O'M. & H. 116). 

It was clearly the intention of the legislature that the persons elected 

should know within a limited time whether or not their election was to 

be questioned, and also the grounds upon which it was to be questioned 

(see Maude v. Loniey, 1874, L. R. 9 C. P., at p. 174; see also Lancaster, 

1896, 5 O'M. & H.'41). It follows, therefore, that in the absence of 

express statutory authority the Court has no jurisdiction to allow a 

I petition to be amended after the time for presenting it has elapsed. 

Such authority is, to a limited extent, conferred by the Act of 1868, 

which provides that, subject to the provisions of that Act, the Court 

{ (now the King's ]>ench Division) is to have the same powers, jurisdic- 

, tion, and authority, with reference to an election petition and the 

proceedings thereon, as it would if such petition were an ordinary 

cause within their jurisdiction (s. 2); and on the trial of an election 

I petition the judges have the same powers, jurisdiction, and authority 

as judges of one of the superior Courts and as judges of assize and Nisi 

j Prius (see s. 29). 



124 ELECTION PETITION 

It has been held under these sections that after the time for present- 
ing the petition has elapsed the Court has no power to allow the petition 
to be amended so as to introduce new charges, as that would be in etiect 
to allow a new petition to be presented after the expiration of the 
pi-escribed time (see Maude v. Lmvley, 1874, L. K. 9 C. P. 165 ; Clarh v. 
Wallond, 1883, 52 L. J. Q. B. 321 ; see also Lancaster, 1896, 5 O'M. & H. 
41 ; Hoffgei'ston, 1896, ibid. 69; Cremer v. Lowles, [1896] 1 Q. B. 504). 
And the Court will not amend a petition by striking out, after the 
lapse of time limited for presenting it, that part of the prayer of thr 
petition which claims the seat for the petitioner, for to do so would 
aflect the rights of the constituency (see Aldridge v. Ifnrst, 1876, 1 C. 
P. D. 410). But in an earlier case where after the presentation of th< 
petition new facts were discovered upon inspection of the ballot papers 
viz., that the returning officer had neglected to insert in the counterfoil- 
of the ballot papers of certain voters their numbers on the burgess roll 
and that certain "tendered ballot papers" (see Ballot) were used a.- 
ballot papers, put into the ballot-box and counted, the Court allowed 
the amendment of the petition so as to include those facts, the point- 
intended to be raised being of serious importance and such as mighi 
aft'ect the result of the election (Pickering v. Startin, 1873, 28 L. T. Ill ) 
It has also been held that it is competent to the Court to amend ; 
l)etition at any time by striking out allegations therein, where th- 
Court is satisfied that no injurious result will follow, or by addini: 
before the time of presenting the petition has elapsed, matters dis 
covered after the filing of the petition (Aldridge v. Hurst, 1876, suirra ; 
amendments were so made in Wcdsall, Manchester, Stepney, and Monf- 
gcmery, 1892, Day's EL Cas. 7 and 8). 

Application for leave to amend an election petition should be made 
by summons, supported by affidavit, before a judge on the rota of election 
judges. I^ave to amend will not be granted upon an ex parte application 
made to a judge who is not on the rota (see Shaw v. Bechitt (Pontefracf), 
[1893] 1 Q. B. 779; see also [1893] 2 Q. B. 59; Great Yarmouth, 1906). 
In Bodmin, 1906, leave to amend the petition was granted on application 
without any affida\dt in support. 

Particulars. — Such particulars may be ordered by a judge as may 1 > 
necessary to prevent surprise and unnecessary expense, and to ensure 
a fair and eftectual trial, in the same way as in ordinary proceedings 
in the King's Bench Division, and upon such terms as to costs and 
otherwise as may be ordered (Ptule 6). Thus where the petition contain ^ 
general allegations of corrupt and illegal practices, e.g. where "otlu 
corrupt and illegal practices" are alleged, the respondent is entitled 
to particulars of the charges so as to ascertain what he has to meet 
(see, for example, Lancaster, 1896, 5 O'M. & H. 39 ; Haggerston, 1896, 
ihid. 68). 

Moreover, where the petition contains specific allegations of corrupt 
practices, full particulars of the names and addresses of the persons 
affected, and of the times and places of the commission of the acts, of 
the nature and character of the acts, and of the numbers, if anv, on the 




Day 
Worveder, 1892, Uml. ; Stepney, 1S92, ibid.; Bochester, 1S92, ibid.; Cira 
center, 1893, ibid, ; Pontefract, 1893, ihid. ; similar particulars were als 



ELECTION PETITION 125 

lordered in the petitions of 1895-96 and of 1906). In the case of 
allegations of illegal practices similar particulars will be ordered; but 
the orders for particulars must necessarily^ vary with the circumstances 
of each case. Where general corruption is alleged less stringent par- 
jticulars will be ordered (see Beverley, 1869, 1 O'M. & H. 143; Taunton, 
1874, 2 O'M. & H. 70 ; Wigan, 1881, 4 O'M. & H. 1 ; Belfast, 1886, ihid. 
106; Worcester, 1892, Day's El. Cas. 12; Hexham, 1892, ihicl. ; Walsall, 
1892, ihicl ; Pontefract, 1893, ibid). 

With regard to the time for the delivery of particulars, particulars 
( if fieneral allegations have in recent cases been ordered to be delivered 
within a time varying from live to ten days (usually seven days) from 
the date of the order (see Day's El. Cas. 11 ; Lancaster, 1896, 5 O'M. & 
H. 39; Haggerston, l^^^,.ihi(l. 68). 

The particulars of sijccific allegations in the petition have in recent 
practice frequently been ordered to be delivered seven or ten days 

* before the day of trial. There is, indeed, no inflexible rule as to the 

. period before the day appointed for the trial at which particulars must 
be delivered ; the time to be fixed for delivery must depend upon the cir- 

' cumstances of each case (see liushmere v. Isaacson {Stepney), [1893] 1 Q. B. 
118). In several recent cases the order for particulars has made the 
time for delivery depend upon the number of charges in the particulars 

■ (see Cirencester, 1893, Day's El. Cas. 13 ; this practice was followed in 
Smfthampton, Lichfield, Lancaster, and St. George's, 1895-96). 

I Particulars of specific allegations of bribery and treating were ordered 
to be delivered ten days before trial if the charges were under eighty,, 
twelve days if over eighty, and eighteen days if over one hundred and 
twenty, in Great Yarmouth and Maidstone, 1906; similar particulars 
were ordered twelve days Ijefore trial if the charges were under eighty, 
fourteen days if over eighty, and eighteen days if over one hundred and 
twenty, in Bodmin, 1906. In Great Yarmouth, 1906, it was unsuccess- 
fully contended at the trial that the order for particulars as regards 
the time for delivery had not been complied with, inasmuch as in one 
charge no less than fifteen hundred persons unknown were alleged to 
have been treated, and yet the number of charges in the particulars was 
stated as fifty- three. On a petition charging violations of the Ballot 
Act at the poll particulars were ordered to be delivered ten days from 
the date of the order {Islington, 1900). 

When complying with the order for particulars, the petitioner should 
be most careful only to make such charges as he has a reasonable expec- 
tation of being able to prove at the trial (see Pontefract, 1893, 4 O'M. 
& H. 202). The reckless making of voluminous charges in the particulars 
in support of which no evidence can be adduced at the trial is always 
most severely commented upon by the judges (see Norwich, 1886, 4 O'M. 
& H. 91; Woixester, 1892, Day's El. Cas. 88; Montgomery, 1882, iUd. 
152 ; East Manchester, 1892, ihicl. 153 ; Pontefract, 1893, 4 O'M. & H. 202 ; 
Lancaster, 1896, 5 O'M. & H. 42; St. George's, 1896, 5 O'M. & H. 89). 
The petitioner, even if successful, is frequently disallowed the costs of 
such charges, or even ordered to pay the respondent's costs in respect of 
them (see Hereford, 1869, 1 O'M. k H. 197; Blackburn, 1869, iUd. 205; 
Yovqhal, 1869, 'i'M. 298; Noinvich, 1871, 2 O'M. & H. 42; Carrichfergus, 
1880, 3 O'M. & H. 93; Noriuich, 1886, 4 O'M. & H. 91 ; Rochester, 1892, 
4 O'M. & H. 161 ; Wcdscdl, 1892, Day's El. Cas. Ill ; South Meath, 1892. 
ihid. 140; North Meath, 1892, 4 O'M. & H. 193; Pontefract, 1893, ibid. 
201 ; Southampton, 1895, 5 O'M. & H. 24). So in Bodmin, 1906, ibid. 



126 ELECTIOX PETITION 

235, where the petitioners succeeded, and the election was declared void. 
they were nevertheless ordered to pay the respondent the costs oi 
the charges which were withdrawn, and upon which no evidence was 

ottered. 

Full particulars must be given according to the terms of the order, 
otherwise an order for further and better particulars may be obtained : 
such an order was made in Montgomery, 1892, Day's EL Cas. 15 ; Man- 
chester, 1892, ibid. ; Hexham, 1892, ibid. ; and in several of the petitions 
of 1895-96. 

A petitioner cannot extend his petition by making charges in his 
particulars which are not covered by the petition; such particulars 
would be ordered to be struck out (this was done in Montgomery, 1892; 
Lancaster, 1896; Haggerston, 1896; see also Cremer v. Lowle.% [1896] 
1 Q. B. 504). 

I^eave to amend the particulars so as to include further charges may 
be obtained where such charges have only been discovered since the 
delivery of the particulars, provided that they come within the petition 
<see Carrickfergics, 1869, 1 O'M. & H. 264; Bodmin, 1869, ibid. 118: 
Longford, 1870, 2 O'M. & H. 8 ; Walsall, 1892, Day's M. Cas. 15; 
Pontefract, 1893, ibid.). Such application must be supported by atti- 
davit, and is sometimes adjourned to the trial (see Wmxester, 1892, 
ibid.). Application may be made at the trial for the amendment of 
particulars (see East Manchester, 1892, ibid. 154; Pontefract, 1893, ihid 
15). As to amendment in case of a mistake in the particulars, see 
Harwich, 1880, 3 O'M. & H. 61; see also St. Georges, 1896, 5 O'M. 
& H. 90. 

As to particulars on a scrutiny, see^^os^, Scr^diny; and as to particulars 
of recriminatory evidence, see post, Recriminatory Case. 

Inspection of Ballot Papers, etc. — Rejected ballot papers in the custody 
•of the Clerk of the Crown in Chancery can only be inspected by order of 
the House of Commons or of the High Court granted on the Court being 
satisfied by evidence on oath that the inspection or production of such 
ballot papers is required for the purpose of a prosecution for an oflenee 
in relation to the ballot papers (see Ballot), or for the purpose of an 
election petition (Ballot Act, 1872, 35 & 36 Yict. c. 33, Sched. I. liule 
40). Tlie order may be obtained from a judge at chambers {ibid.). The 
counterfoils of the ballot papers and counted ballot papers also can only 
Ije inspected by order, and care must be taken on making and carryini,^ 
into effect any such order that the mode in which any particular elector 
has voted shall not be discovered until he has been proved to have voted, 
and liis vote has been declared to be invalid {ibid. Rule 41). Such orders 
may be made subject to such conditions as to persons, time, place, and 
mode of inspection as may be deemed expedient {ibid.. Rules 40 and 41 ; 
.see also Tyrone, 1873, 7 Ir. R. C. L. 190 ; Stowe v. Jolliffe, 1874, L. R. 9 
C. P. 446). The return, declarations, and other documents sent by the 
Election Agent to the returning officer are, however, open to public 
inspection, and copies may be obtained upon payment of fees (see Ballot 
Act, 1872, Rule 42; and Corrupt and Illegal Practices Prevention Act, 
1883, 8. 35 (2)). 

liecmcrU. — Where it is alleged that the ballot papers have been 
niiscounted, an^ order may be obtained for a recount before the trial of 
the petition. The application for an order for a recount is by summons 



ELECTION PETITION 127 

before an election judge, supported by affidavits. The order for a recount 
has been frequently applied for and obtained in recent petitions. As to 
the procedure on a recount, see the article Eecount. 

Withdravxd of Petition. — ^Election petitions being proceedings of a 
quasi-criminal nature in which public interests are concerned, are not to 
he, regarded as merely private litigation inter '^partes. After an election 
petition has been presented, therefore, it cannot be withdrawn without 
the leave of two election judges upon special application (s. 35 of the 
Act of 1868; Parliamentary Elections and Corrupt Practices Act, 1879, 
.42 & 43 Vict. c. 75, s. 2; see also North Durham, 1874, 4 O'M. & H. 2 ; 
Brecon, 1870, 2 O'M. & H. 33). No application can be made for the 
withdrawal of a petition until notice has been given in the county or 
borough to which the petition relates of the intention of the petitioner 
to make an application for the withdrawal of his petition (s. 35 of the 
<Act of 1868). The notice must be in writing and signed by the 
.. petitioners or their agent, and must state the ground on which the 
application is intended to be supported. It must be left at the Master's 
othce, and a copy of it must be given by the petitioner to the respon- 
dent, and to the returning officer, who must make it public in the 
county or borough to which it relates, and it must be forthwith 
published by the petitioner in at least one newspaper circulating in 
the place (Pules 45-47). 

On the hearing of the application for withdrawal, any person wlio 

might have been a petitioner in respect of the election to which the 

petition relates may apply to the Court to be substituted as a petitioner 

for the petitioner so desirous of withdrawing the petition (s. 35 of the 

, Act of 1868). Notice in writing of intention to make such application 

I should be given to the Master, but the want of such notice will not 

defeat the application if in fact made at the hearing (Pule 48). The 

time and place for hearing the application is to be fixed by a judge, and 

the hearing is not to be less than a week after the notice of the intention 

, to apply has been given to the Master. Notice of the time and place 

appointed for the hearing is to be given to such persons, if any, as have 

given notice to the Master of an intention to apply to be substituted as 

petitioners, and otherwise in such manner and such time as the judge 

directs (Rule 49). 

The Court may, if it think fit, substitute as a petitioner any such 

applicant, and may further, if the proposed withdrawal is in the opinion 

of the Court induced by any corrupt bargain or consideration, by order 

direct that the security given on behalf of the original petitioner shall 

remain as security for any costs that may be incurred by the substituted 

petitioner, and that to the extent of the sum named in such security the 

original petitioner shall be liable to pay the costs of the substituted 

petitioner (s. 35 of the Act of 1868). If no such order be made with 

respect to the security given on behalf of the original petitioner, secuiity 

to the same amount as would be required in the case of a new petition, 

i and subject to the like conditions, must be given on behalf of the sub- 

I stituted petitioner before he proceeds with his petition, and within the 

prescribed time after the order of substitution (ibid.). A substituted 

petitioner stands in the same position, as nearly as may be, and is subject 

!, to the same liabilities as the original petitioner (ibid.). 

I If a petition is withdrawn, the petitioner is liable to pay the costs of 

■ tlie respondent (ibid.). Where there are more petitioners than one, no 



128 ELECTION PETITION 

application to withdraw the petition can be made except with the consent 
of all the petitioners (ibid.). 

Before leave for the withdrawal of an election petition will be granted 
afhdavits by all the parties to the petition and their solicitors, and by tli 
Election Agents of all the parties to the petition who were candidates ;. 
the election, must be produced, but the Court may on cause shown dis- 
pense with the affidavit of any particular person if it seems on speci;il 
grounds to be just so to do (Corrupt and Illegal Practices Prevent!- 
Act, 1883, 8. 41 (1)). Where more than one solicitor is concerned fui- 
the 'petitioner or respondent the affidavit must be made by all such 
solicitors (ibid. s. 41 (8)), and where a person not a solicitor is lawful] 
acting as agent in the case of an election petition he is deemed to be 
solicitor for the purpose of making an affidavit (ibid. s. 41 (9)). As i 
the contents of the affidavits, see ibid. s. 41 (2) and (3). Copies of tl 
affidavits must be delivered to the Public Prosecutor a reasonable tin 
before the application for the withdrawal is heard, and the Court m.i 
hear the Public Prosecutor or his representative (appointed with tl 
approval of the Attorney-General) in opposition to the allowance of tl 
withdrawal of the petition (ibid. s. 41 (5); see also Lichfield, 1892, Da} 
£1. Cos. 8; Halifax, 1892, ibid. 9). For a discussion of the terms andj 
conditions under which a petition will be allowed to be withdrawn,! 
including the functions of the Public Prosecutor and inquiry by hun, 
and the question of costs, and who is to pay the expense of the necessary 
inquiries with reference to the reason for withdrawal, the absence of 
collusion, and the groundlessness of the charges in the petition to 1 
withdrawn, see Devonport, 1886, 2 T. L. E. 345. 

Kecent cases in which the Court has granted leave to withdraw tli*' 
petition are Finsbunj, 1892, 4 CM. & H. 177; Dtcrham, 1895. Thej 
Court has also allowed petitions claiming a recount and scrutiny, and' 
claiming the seat, to be withdrawn in consequence of the result of tl 
recount, which in modern practice is taken before the trial of tli 
petition, being adverse to the petitioners (see Lichfield, 1892, Day's El 
Cas. 8; York, 1898, 5 O'M. & H. 118; ChristcMrch, 1901, ibid. 147 
Ajyplehj, 1906, ibid. 237). On the other hand, in Halifax, 1893, Dav 
El. Cas. 9, a petition for a recount was not allowed to be withdraw) 
after the recount, but w^as ordered to proceed to trial. 

The Court must be satisfied that the withdrawal is not the result o 
any corrupt bargain between the parties, and in practice affidavits ai > 
required not only from the principal agents on each side but from tl 
petitioners, and sometimes also from the sitting member, because tlu 
parties themselves miglit make a compromise without the knowledge' 
of the agents (North Durham, 1874, 3 O'M. & H. 5). In Halifax, 189:! 
4 O'M. & H. 203, an application to withdraw was refused on the grouiu 
of the insufficiency of the affidavits, and that there might be matter 
which should be inquired into by the Public Prosecutor. 

If any person makes any agreement or enters into any undertakim 
for the withdrawal of the election petition in consideration of any pa^ 
raent, or in consideration that the seat shall at any time be vacate^ 
or in consideration of the withdrawal of any other election petitioi 
or makes any agreement or enters into any undertaking in relation t- 
tlie withdrawal of an election petition which is not mentioned in t]i< 
affidavits, he is guilty of a misdemeanor, and liable on conviction oi 
indictment to imprisonment for a term not exceeding twelve montlu 
and to a fine not exceeding £200 (ibid. s. 41 (4)). 



ELECTION PETITION 129 

In every case of the withdrawal of an election petition the Court 
must report to the Speaker whether in their opinion the withdrawal 
was the result of any agreement, terms, or undertaking, or was in 
consideration of any payment, or that the seat should at any time be 
, vacated, or of the withdrawal of any other petition, or for any other 
consideration, and if so must state the circumstances attending the 
withdrawal {ibid. s. 41 (7)). 

Where a petition complains of a double return, and the respondent 
has given notice to the Master that he does not intend to oppose it, and 
no party has been admitted to defend such return, then the petitioner, 
i if there be no petition complaining of the other member returned, may 
: withdraw his petition by notice to the Master, who must report the fact 
of the withdrawal of the petition to the Speaker (s. 40 of the Act of 
1868). 

\ Ahatement of Petition. — An election petition is abated by the death 

I of a sole petitioner or of the survivor of several petitioners. The 

• abatement of a petition does not affect the liability of the petitioner 

' to the payment of costs previously incurred (s. 37 of the Act of 1868). 

On the abatement of a petition notice must he given in the county or 

borough to which the petition relates by the person interested, in the 

same manner as notice of an application to withdraw a petition. Any 

person who might have been a petitioner in respect of the election to 

I which the petition relates may apply by motion or summons at chambers, 

I within one calendar month, or such further time as the Court may allow, 

to be substituted as a petitioner ; and the Court may, if it think fit, 

: substitute as a petitioner any such applicant who is desirous of being 

; substituted, and on whose behalf security to the same amount is given 

I as is required in the case of a new petition {ibid. s. 37, and Eule 50). 

The dissolution of Parliament would also effect an abatement of a 

pending election petition. The effect of a dissolution of Parliament 

while an election petition is pending, before the hearing of the petition, 

1 is that the petition drops, and the Court will order the sum deposited 

by the petitioner by way of security for costs to be returned to him (see 

■ Carter v. Mills {Exeter), 1874, L. Pt. 9 C. P. 117; see also Marshall v. 

Janus {Taunton), 1874, ibid. 702). The death of a respondent does not, 

' however, effect an abatement ; a petition may even be presented after 

' the death of the member whose election is disputed (see Tipperary, 

1875, 3 O'M. & H. 21). 

Special Case. — Where upon the application of any party to a petition 

it appears to the Court that the case raised by the petition can be con- 

: veniently stated as a special case, the Court may direct the same to be 

stated accordingly. The application to state a special case may be made 

by rule in the King's Bench Division of the High Court when sitting, or 

'\ by a summons before a judge at chambers upon hearing the parties. 

\ Any such special case is, as far as it may be, to be heard before the 

\ Court, and the decision of the Court is to be final (s. 11 (16) of the Act 

( of 1868, and Eule 37). One counsel only on each side will be heard on 

, the hearing of a special case (see Ackers v. Hovmrd {Thornhiry), 1886, 

16 Q. B, D., at p. 746). Though the decision of the Court upon a special 

( case is to be final (see s. 11 (16)), yet apparently an appeal would lie if 

' special leave to appeal be granted (see Line v. Wan^en, 1885, 14 Q. B. I). 

j 548; Bcrcsford Hope v. Lady Sandhurst, 1889, 23 Q. B. D. 79; Unwin 

\ VOL. V. 9 



130 ELECTION PETITION ■ 

V. M'Midlen, [1891] 1 Q. B. 694; see also Shaw v. Recldtt {Pontefract\ 
[1893] 2 Q. B. 59). 

In Attercliffe, 1906, 5 O'M. & H. 218, which was a petition under the 
Corrupt and Illegal Practices Prevention Act, 1895, 58 & 59 Vict. c. 40, 
alleging that the respondent and his agents had made and published 
false statements of fact in relation to the personal character and conduct 
of the petitioner for the purpose of affecting the return, the petitioner 
at the trial, after judgment dismissing the petition had been given, 
applied to the Court for their decision to be stated in the form of a 
special case with a view to appeal, but the application was refused 
{iJbicL 224). 

The determination of the Court in reference to the special case must 
be certified by the Court to the Speaker (s. 11 (16)). 

For instances of special cases granted in parliamentary election 
)>etitions, see New Sarum, 1869, L. E. 4 C. P. 369; Hereford, 1869, 19 
L T. N. S. 703; Manchester, 1869, L. K. 4 C. P. 296; Haverfm'dwest, 
1874, L. E. 9 C. P. 720. 

Trial of Petition. — Election List. — The Master is required to make 
out a list of all petitions which are at issue, placing them in the order in 
which they were presented, and such petitions, as far as conveniently 
may be, are to be tried in the order in which they stand in the list (s. 10 
of the Act of 1868, and Eule 30). Where more than one petition has 
been presented against a candidate the petitions may be tried together 
{Yorkshire, 1869, 1 O'M. & H. 213; Poole, 1874, 2 O'M. & H. 123). 

Constitution of the Election Court. — The trial of an election petition 
is now conducted before two judges of the King's Bench Division of tlie 
High Court, who are selected from a rota formed of three judges of the 
King's Bench Division (see s. 11 of the Act of 1868 ; Parliamentary 
Elections and Corrupt Practices Act, 1879, s. 2; and Judicature Act, 
1881, s. 13). The three judges placed on the rota for the trial of 
election petitions during the ensuing year are selected by the majority 
of votes of the judges of the King's Bench Division on or before the 4th 
November in every year, and, in case the judges present at the time of 
their meeting to make such selection are equally divided in their choice 
of any judge to be placed upon the rota, the Lord Chief Justice of 
England, or in case of his absence, the senior judge then present, has a 
second or casting vote. The choice of a judge to fill any occasional 
vaciincy upon the rota, or to assist the judge on the rota as an additional 
judge, is to be made in like manner. If at the end of the year for which 
any such judge is appointed any trial or other matter be pending and 
not concluded, or if after the conclusion of the trial or of the hearing of 
any such matter judgment has not been given thereon, he may proceed 
with and conclude the trial or other matter, and give judgment thereon 
after the end of such year as if it had not expired (Judicature Act, 1881, 
8. 13 ; see also Corrupt and Illegal Practices Prevention Act, 1883, s. 42). 
-AJiy judge phiced on the rota is re-eligible in the succeeding or any sub- 
sequent year. In the event of the death or illness of any judge for the 
time being on the rota, or his inability to act for any reasonable cause, 
the vacancy is to be filled as above mentioned (s. 11 (4) and (5) of the 
Act of 1868). Under the power so conferred by statute a judge of the 
King's Bench Division was in 1906 substituted for one of the judges on 



ELECTION PETITION 131 

the rota, for the trial of election petitions, who was unwilling to act. 
An additional judge or judges may also be appointed where the 
judges on the rota, having regard to the list of petitions, consider that 
there would otherwise be inconvenient delay in the trial of any of the 
petitions {ibid. s. 11 (7)). An additional judge was so appointed in 1906. 
The judges for the time being on the rota are, according to their 
seniority, respectively to try the election petitions standing for trial, 
unless they otherwise agree among themselves, in which case the trial of 
each election petition is to be taken as provided by such agreement {ibid. 
s. 11 (8)). An election petition is tried by two of the judges on the rota 
sitting in open Court without a jury {ibid. s. 11 (9) ; see also Parliamen- 
tary Elections and Corrupt Practices Act, 1879, s. 2). 

Poioers of Election Court. — The Election Court held for the trial of 

an election petition is a Court of Eecord, and the judges have the same 

; powers, jurisdiction, and authority as judges of the High Court, and as 

judges of assize and Msi Prius {ibid. s. 29 ; as to the title of the Court, 

^QQ liule 38). 

The Registrar. — An officer termed the Registrar is to be appointed 
for each Court for the trial of an election petition, who is to attend at 
the trial as the clerks of assize and arraigns attend at the assizes, and to 
perform all the functions incident to the officer of a Court of Record 
(Rale 39). The Registrar, for the purposes of the trial of the election 
petition, has the custody of the original petition and of all orders and 
other documents relating thereto which are transferred to him from the 
Election Petition Office. It is also the practice for the ballot papers 
relating to the election which is in dispute in the petition to be sent by 
the Clerk of the Crown in Chancery to the Registrar, so that they may 
be at hand if necessary for the purposes of the trial. After the trial 
the ballot papers are returned by the Registrar to the Clerk of the 
Crown. It is the duty of the Registrar to open the proceedings at the 
trial by administering the oath to the shorthand writer of the House of 
' Commons, or his deputy, who must attend and take down the evidence 
(see s. 24 of the Act of 1868); the Registrar then reads the petition, 
and the trial commences. 

Notice of Trial, — Notice of the time and place of trial must be put 
up in the Master's office, and sent by him by post fifteen days before 
the day fixed for the trial to the petitioners and respondents, and to the 
returning officer, i.e. the sheriff' or mayor as the case may be ; notice of 
the time and place of trial of each election petition must also be trans- 
mitted by the Master to the Treasury and to the Clerk of the Crown in 

\ Chancery (see Rules 31, 32, and 62 ; s. 11 (10) of the Act of 1868 ; for 

f form of notice, see Rule 32). 

Place of Trial. — The trial of an election petition in the case of a 

, petition relating to a borough election must take place in the borough, 

and in the case of a petition relating to a county election in the county 

' (s. 11 (11) of the Act of 1868). If, however, it appears to the Court 

' {i.e. the King's Bench Division) that special circumstances exist which 

♦ render ib desirable that the petition should be tried elsewhere than in 

the borough or county, the Court has power to appoint such other place 

for the trial as may appear most convenient {ibid.). As to what " special 



132 ELECTION PETITION 

circumstances " are sufficient to induce the Court to change the place of 
trial from the county or borough where the election was held, see Sligo, 
1869 1 O'M & H. 300; Collim v. Price, 1880, 5 C. P. D. 544; Arch v. 
BaUinclc, 1887, 18 Q. B. D. 548; Hexlmm, 1892, Day's EL Cos. 26; 
Laws(yii v. Chester Master {Ciretwester), ibid. 27, and [1893] 1 Q. B. 245. 
In the case of a petition relating to any of the boroughs within the 
metropolitan district, the trial may be at such place within the district 
as the Court may appoint (s. 11 (ll)); several petitions have in accord- 
ance with this provision been tried at the lioyal Courts of Justice (e.g. 
Kcnningtmi, 1886 ; Fhislnirij, 1892 ; Stepney, 1892 ; Haggerstoii, 1896 ; 
St. Gewges, 1896), Where no place of trial is fixed as above, the time 
and place of trial of each election petition is to be fixed by the judges on 
the rota (Rule 31). The order to change the place of trial from the 
county or borough where the election took place must be made by the 
Court, and not by a judge at chambers (Collins v. Price, Teickesbury, 
1880, 5 C. P. D. 544). 

Receptimi of Election Judges. — The judges are to be received at the 
place where they are about to try an election petition with the same 
state, so far as circumstances admit, as judges of assize are received at 
an assize town (s. 28 of the Act of 1868). In the case of a petition 
relating to a county election the sheriff, and in any other case the mayor, 
in a borough having a mayor, and in the case of a borough not having 
a mayor, the sheriff of the county, or some person named by him, must 
receive the judges (ibid.). 

Expenses of Election Court. — The travelling and other expenses of the 
judges, and all expenses properly incurred by the sheriff or by such 
mayor or other person in receiving the judges and providing them with 
necessary accommodation and with a proper Court, are to be defrayed 
by the Treasury out of money provided by Parliament (ibid.). The 
judges are to be attended on the trial of an election petition in the 
same manner as if sitting at Nisi Prius, and the expenses of such 
attendance are to be deemed to be part of the expenses of providing 
a Court (iUd. s. 30). 

Postponement of Trial. — The beginning of the trial may be postponed 
from time to time by judge's order made upon the application of a party 
to the petition. It may also be postponed by the judge directing notice 
tu be sent to the returning officer, which notice, when received, is forth- 
with to be made public by the returning officer. The trial will in such 
cases stand postponed until the day named in the order or notice (see 
Kule 34). 

Adjmtrniiieid of Trial. — In the event of the two election judges, or 
eitlier of them, not having arrived at the time appointed for the trial, or 
to wliicli the trial is postponed, tlie connnencement of the trial would 
ipso facto stand adjourned to the ensuing day, and so from day to da} 
(see Rule 35). 

The judges presiding at the trial have power to adjourn the trial 
from time to time, and from any one place to any other place within the 
county or l)orough, as may be expedient (s. 11 (12) of the Act of 1808). 
But when the trial has conmienced no formal adjournment of the Court 



ELECTION PETITION 133 

' is necessary, for the trial is to be deemed adjourned, and may be con- 
tinued from day to day until the inquiry is concluded (Eule 36). The 

' trial of every election petition, so far as is practicable consistently with 
the interests of justice, is to be continued de die in diem on every lawful 
day until its conclusion (Corrupt and Illegal Practices Prevention Act, 

" 1883,8.42). 

In the event of one of the two judges presiding at the trial dying, or 
being disabled by illness or otlierwise before the conclusion of the trial, 
another judge would have to take his place, and the trial would have to 
be recommenced (see s. 11 (5) of the Act of 1868, and Kule 36). In 

' Bodmin, 1906, 5 O'M. & H. 225, on the fourth day of the trial, in conse- 
quence of the serious illness of one of the judges, the Court adjourned, 
and the trial was subsequently commenced de novo, another judge having 
l)een substituted in the place of the judge who was ill. 

Evidence. — The ordinary rules of evidence. are as a general rule 
applicable at the trial of an election petition. There is, however, this 
exception to the ordinary principles of evidence with regard to proof of 
agency, that at the trial of an election petition, unless the Court other- 
wise directs, any charge of a corrupt practice may be gone into, and 
evidence in relation thereto received, before any proof has been given of 
agency on the part of any candidate in respect of such corrupt practice 
(s. 17 of the Act of 1868 ; see Brisiol, 1870, 2 O'M. & H. 29). As to the 
evidence of agency at elections, see Agency (Election). 

The difficulty of obtaining reliable evidence in support of an election 
petition is notorious, but the practice of obtaining a statement from a 
witness who has previously made a statement to the other side is regarded 
as most improper, and has been strongly condemned by the judges in 
many election petitions (see Worcester, 1906, 5 O'M. & H. 214, ^9cr 
I^wrance, J. ; see also Mcddstone, 1906, ibid. 201). 

Evidence cannot in general be given of matters not referred to in 
the particulars. No evidence may be given by a respondent of any 
objection to the election not specified in the list of objections given by 
the petitioner, except by leave of the Court (see Eule 8). Evidence is, 
however, admissible to contradict a witness upon matters collateral to 
the issue (see North Norfolk, 1869, 1 O'M. & H. 239). 

in a recent petition the treasurer of a political association on subpoena 
produced vouchers and books in his possession showing the expenditure 
of the association during a certain period. The paying-in book, pass- 
book, and counterfoils were produced, but counsel for the respondent 

: > jected to their being shown to any one but counsel on the other side, 
upon the ground that they might contain references to political work 
which it would be highly oppressive to allow the agent of the other party 

' see; and this objection was upheld by the Gowxt {Maidstone, 1906, 

O'M. & H. 204). 
In the same case the respondent's election agent, who was the secre- 

iry of the same political association, was called on to produce upon his 

iibpoena any account books kept by him apart from those filed by him 
iis agent, and in particular the petty cash-book, as to certain specific 
petty cash entries in which counsel for tlie petitioner asked for par- 

i'ulars. This was objected to on behalf of the respondent, upon the 

loinid that this would give the petitioner a roving conmiission of 
inquiry, and would practically amount to allowing discovery, which is 
never granted in election petitions. The Court held that where there 



134 ELECTION PETITION 

are charges in the particulars with reference to payments to specified 
persons, ''the entries in a petty cash-book referring to the particular 
persons' or dates may be looked at, but any payments other than those 
on the dates and to the persons mentioned in the particulars must not 
be seen (see ibid. 205). 

The production of any documents relating to the election in the 
possession of the Clerk of the Crown in Chancery may be obtained on 
order (see Kule 43 of the Ballot Act Kules). The production of the 
return of the election expenses, vouchers, or other documents in the 
possession of the returning officer may be effected by stibposna duces 
tecum to the returning officer. 

An order may be obtained for the production of telegrams by the 
Post Office (see Bolton, 1874, 2 O'M. & H. 139; Harioich, 1880, 
3 O'M. & H. 62). 

Where a respondent has been substituted in accordance with the 
provisions of the Act of 1868 (see ante), any admission by the original 
respondent is evidence against the substituted respondent (see Tipperary, 
1875, 3 O'M. & H. 34). 

The evidence of persons unable to attend the trial through illness may 
be taken on commission before the Kegistrar of the Election Court (see 
Wallinfjfcyrd, 1869, 1 O'M. & H. 58 ; Montgomery, 1892, Day's El. Cas. 29 ; 
Worcester, 1892, ibid.). 

As to recriminatory evidence, see 7:>os^, Recriminatory Case. 

Witnesses. — Witnesses must be subpoenaed and sworn in the same 
manner, as nearly as circumstances admit, as in a trial at Nisi Prius 
(s. 31 of the Act of 1868). Notice of trial must be given before 
subpoenas can be issued, otherwise it would be impossible to insert the 
time and place of trial {Stepney, 1892, Day's El. Cas. 26). As to 
s^ihpcena duces tecum, see Hexham, 1892, ihid. As to an order for tlie 
attendance of witnesses out of the jurisdiction, see Casliel, 1869, 
1 O'M. & H. 287. 

On the trial of an election petition the judges have power by order 
to compel the attendance of any person as a witness who appears to have 
been concerned in the election to which the petition refers, and any 
person refusing to obey such order is guilty of contempt of Court (s. 32 
of the Act of 1868). Such an order will be made where a witness has 
evaded service of a subpoena, or does not attend on his subpoena (see 
Norvnch, 1869, 1 O'M. & H. 9 ; Waterford, 1870, 2 O'M. & H. 3 ; Lomi- 
ford, 1870, iUd. 12; Galway, 1872, ibid. 50; Taunton, 1874, iUd. 70). 
For fonn of order to compel the attendance of a person as a witness, see 
Rule 41 ; for form of warrant for committal, Eule 42 ; and as to the 
direction and execution of such warrant, Eule 43. 

The judges may examine any witnesses so compelled to attend, or aii} 
person in Court, although such witness is not called and examine* I 
by any party to the petition; such witness may afterwards be cross- 
examined on belialf of the petitioner and respondent, or either of them 
(8. 32 of tlie Act of 1868 ; see also Montgomei^j, 1892, 4 O'M. & H. 169 : 
see, however, Maidstone, 1906, 5 O'M. & H. 211). 

Witnesses at the trial of an election petition are subject to the same 
penalties for perjury as in a trial at Nisi Prius (s. 31 ; see also Worcester 
1892, Day's EL Cas. 26 ; Stepney, 1892, ibid.). In some cases applica- 
tions have been made to the Election Court for warrants against wit 
nesses for perjury, but the Court usually requires the usual proceedings 



ELECTION PETITION 135 

to be taken before a magistrate (see Worcester, 1892, Day's M. Cas. 80 ; 
Mordgomery, 1892, ibid.). 

No witness called at the trial of any election petition is liable to be 
asked, or bound to answer, any question for the purpose of proving the 
commission of any corrupt practice at or in relation to any election prior 
to 1883 (Corrupt and Illegal Practices Prevention Act, 1883, s. 49 ; see 
Normch, 1886, 4 O'M. & H. 90). And no witness can be required to state 
for whom he voted (Ballot Act, 1872, 35 & 36 Vict. c. 33, s. 12), nor can 
he be asked what party he belongs to (see Harivich, 1880, 3 O'M. & H. 
:>; see also North Durham, 1874, ibid. 1). 

Witnesses may be ordered out of Court, even though the petition 
contains charges against them {Montgomery, 1892, Day's El. Cas. 

;^0). 

As to the allowance of the expenses of witnesses, see sec. 34 of the Act 
f 1868. 

Certificates of Indemnity. — Witnesses called before any Election Court 
ure not excused from answering any question relating to any offence 
connected with the election on the ground that the answer thereto may 
criminate or tend to criminate themselves, or on the ground of privilege 
(Corrupt and Illegal Practices Prevention Act, 1883, s. 59 (1)). But a 
witness who answers truly (see Worcester, 1892, Day's El. Cas. 79 ; 
Bodmin, 1906, 5 O'M. & H. 235) all questions which he is required by 
the Election Court to answer is entitled to receive a certificate of 
indemnity; and an answer by a witness to a question put by or 
before any Election Court is not, except in criminal proceedings for 
perjury in respect of such evidence, admissible in evidence against 
him in any proceeding, civil or criminal (s. 59 (1) of the Act of 
1883). 

It has been said that this provision is intended to protect persons 
who are required to attend as witnesses, in order that they may not be 
afraid of telling the truth, but a witness cannot come and insist upon 
giving evidence for the purpose of getting a certificate, for the Act does 
not provide an indemnity for everyone who admits that he was bribed 
{Worcester, 1906, 5 O'M. & H. 215, per Walton, J.). A person, therefore, 
who was not a witness at the trial of the petition, but is merely showing 
cause why he should not be reported, is not entitled to a certificate of 
indemnity, nor has the Court power to grant him a certificate {ibid.). 
On the other hand, it was held in an earlier case that where a person, on 
the hearing of an election petition, shows cause against being reported, 
and questions are put to criminate him with regard to an offence, and 
he answers truthfully, he is a person called as a witness respecting an 
election before the Election Court within the meaning of sec. 59 of the Act 
of 1883, so as to be entitled to a certificate {Monmouth, 1901, 5 O'M. & H. 
175, per Kennedy, J.). Application for certificates of indemnity is made 
by the incriminated witnesses at the close of the trial of the election 
petition at which they have been called as witnesses. When the Court 
is satisfied that all questions put to a witness were truthfully answered 
by him, a certificate of indemnity will be granted, but if the Court is not 
satisfied as to the truthfulness of the evidence of any particular witness 
a certificate of indemnity will be refused (see Islington, 1901, 5 O'M. & H. 
134; Maidstone, 1901, ibid. 154; Bodmin, 1906, ibid. 235). 

The following is the usual form of certificate of indemnity : — 



136 ELECTION PETITION 

Fcn-m of Certificate of Indemnity. 
The Parliamentaky Elections Act, 1868, 

AND 

The Corrupt and Illegal Practices Prevention Acts, 
1883 AND 1895. 

Court for the Trial of an Election Petition 
for the 



Between 



and 



, Petitioner, 



, Respondent. 



Whereas ' was called and examined as 

a Witness before us on the trial of the said Petition, now we 
do hereby certify that the said as such 

Witness, as aforesaid, was upon his examination required by 
us to answer questions relating to Corrupt Practices at, or 
connected with the Election to which the said Petition j 
referred, the answers to which questions criminated or tendedj 
to criminate him, and that the said 
answered truly all such matters. 

As Witness our hands this day of 

Judges of the said Court. 

Where a person has received such a certificate of indemnity, and ai 
legal proceeding is at any time instituted against hmi for any electi( 
offence connnitted by him previously to the date of the certificate, tl 
Court having cognisance of the case must, on proof of the certificat 
stay the proceeding, and may in their discretion award him costs {il ' 
8. 59 (2)). A person who has received a certificate of indenmity is not,f 
however, thereby relieved from any incapacity under the Corrupt and 
Illegal Practices Prevention Act, 1883, or from any proceeding to enforc • 
such incapacity, other than a criminal prosecution {ibid. s. 59 (3)). 

Scrutiny. — A scrutiny may be asked for in the petition if the seat i^ 
claimed for an unsuccessful candidate, and it is alleged that he had 
majority of lawful votes. A scrutiny involves a separa1;e inquiry int^' 
the validity of each vote which is objected to. 

When a petitioner claims the seat for an unsuccessful candidal » 
alleging that he had a majority of lawful votes, the petitioner and tli 
responaent must, six days before the day appointed for the trial, delivt . 
to the Master, and also at the address, if any, given by the other side, a, 
list of the votes intended to be objected to, and of the heads of objection 
to each sucli vote; no evidence can be given against the validity of any 
vote, nor u|X)n any head of objection not specified in the scrutiny list,! 
except by leave of the Court or judge, upon such terms as to amendnienti 



ELECTION PETITION 137 

of the list, postponement of the inquiry, and payment of costs as may be 
ordered (Rule 7). See Munro v. Balfour {East Manchester), [1893] 1 Q. B. 
113; see also Day's EL Cas. 16. 

The scrutiny takes place at the trial, and should, as a rule, be taken 
before the recriminatory case (see Stepiiey, 1886, 4 O'M. & H. 35 ; see 
however, Ym^kshire, 1869, 1 O'M. & H. 214 ; Fetersfieid, 1874, 2 O'M. & H. 
95). In one petition the Court refused to deal with an application to 
amend the scrutiny list until the recriminatory case had beea heard 
{St. Georges, 1896, 5 O'M. & H. 103). The recent cases in which a scrutiny 
has been claimed are St. Georges, 1896, 5 O'M. & H. 89 ; Pembroke, 1901, 
ihid. 135 ; Christchurch, 1901, ibid 147 ; Appleby, 1906, ibid. 236. As to 
the procedure on a scrutiny, see Scrutiny. 

Rccriminatoi'y Case. — On the trial of a petition complaining of an 
imdue return, and claiming the seat for some person, the respondent 
may give evidence to prove that the election of such person was undue 
in the same manner as if he had presented a petition complaining of such 
election (s. 53 of the Act of 1868). When the respondent intends to give 
recriminatory evidence he must, six days before the day appointed for 
the trial, deliver to the Master, and also at the address, if any, given by 
the petitioner, a list of the objections to the election upon which he 
intends to rely, and the Master must allow inspection and office copies 
of such lists to all parties concerned (Rule 8). No evidence can be given 
by a respondent of any objection to the election not specified in the list, 
except by leave of the Court or judge, upon such terms as to amend- 
ments of the list, postponement of the inquiry, and payment of costs as 
may be ordered {ibid.). 

Recriminatory evidence can be given only when the seat is claimed 
(see Blackburn, 1869, 1 O'M. & H. 199 ; North Durham, 1874, 2 O'M. & H. 
154; Thirsk, 1880, 3 O'M. k H. 113). 

The recriminatory case follows the trial of the petition, and is in the 
nature of a cross-petition ; but where a scrutiny is claimed it should be 
taken before the recriminatory case (see Stepney, 1886, 4 O'M. & H. 35 ; 
see, however, St. Georges, 1896, 5 O'M. & H. 103). 

The recriminatory case may be withdrawn at the trial; all the 
parties being before the Court, notice to the Public Prosecutor is not 
necessary as in the case of the withdrawal of an original petition. In 
recent petition the scrutiny not being proceeded with at the trial, the 
V ourt allowed the recriminatory case to be withdrawn, subject to cause 
l»eing shown by the Public Prosecutor, if desirable, on notice within a 
week to restore it (see Haggerston, 1896, 5 O'M. & H. 88). In another 
petition, after the hearing of the recriminatory case, the scrutiny was, by 
leave of the Court, not proceeded with {St. George Sy 1896, 5 O'M. & H. 
117). 

Reservation of Points of Law. — If on the trial of the petition it appear 
the judges that any questions of law, as to the admissibility of 
evidence or otherwise, require further consideration by the Court {i.e, 
the King's Bench Division), they have power to reserve the same in like 
manner as questions are reserved by a judge on a trial at Nisi Prius, and 
to postpone the granting of the certificate until the determination of the 
flame (s. 12 of the Act of 1868). 

An application at the trial to reserve a question of law for the con- 
sideration of the King's Bench Division must be made before the decision 



138 ELECTION PETITION 

of the question by the Election Court (see Lorulonderry, 1886, 4 O'M. »S: 
H. 103). An application to reserve a question of law was made at the 
trial in Attercliffe, 1906, 5 O'M. & H. 224, but was refused. As to tlie 
reservation of questions of law, see Ackers v. Howard (Thornbury), 
1886, 16 Q. B. D. 739; Isaacson v. Durant {Stepney), 1886, 17 Q. B. 1). 
54; Thorntmry, 1886, 4 O'M. & H. 68. 

The Puhlic Prosecutor. — The Director of Public Prosecutions (now the 
Solicitor to the Treasury; see the Prosecution of Offences Act, 1884, 
47 & 48 Vict. c. 58, s. 2) must by himself or by his assistant or repre- 
sentative attend at the trial of every election petition (Corrupt and 
Illegal Practices Prevention Act, 1883, s. 43 (1)). The Public Prosecutor 
may nominate, with the approval of the Attorney-General, a barrister or 
solicitor of not less than ten years' standing to be his representative at 
the trial {ibid. s. 43 (7)). It is the duty of the Public Prosecutor to obey 
any directions given to him by the Election Court with respect to tlie 
summoning and examination of any witness to give evidence at the trial, 
and with respect to the prosecution by him of offenders, and with respect 
to any person to whom notice is given to attend with a view to report 
him as guilty of any corrupt or illegal practice {ibid. s. 43 (1)). It is 
also the duty of the Public Prosecutor, without any direction from the 
Election Court, if it appears to him that any person is able to give 
material evidence as to the subject of the trial, to cause such person to 
attend the trial, and with leave of the Court to examine such person as 
a witness {ibid. s. 43 (2)). In one petition the Public Prosecutor was 
directed by the Court to call and examine the respondent's election 
agent, who had not been called as a witness by either party {Hexham, 
1892, Day's El. Cos. 30). The Court gave leave to the Public Prosecutor 
to call witnesses in Rochester, 1892 ; Montgomery, 1892 ; Great Yarmouth, 
1906 ; and Maidstone, 1906. As to cross-examination of witnesses by coun- 
sel for the Public Prosecutor, see Stepney, 1886, 4 O'M. & H. 36 ; Buckrosc, 
1886, ibid. 115 ; Hexham, 1892, Day's M. Cos. 30. In a recent petition 
counsel for the petitioner was not allowed to cross-examine a witness 
wlio was said to have been bribed, and who was called by the repre- 
sentative of the Public Prosecutor under the direction of the Court 
(Maidstone, 1906, 5 O'M. & H. 211). The Public Prosecutor should only 
call witnesses to prove the guilt of individuals, and not as to other 
matters in issue in the petition, except where there is collusion between 
the parties to the petition in withholding evidence (see Rochester, 1892. 
4 O'M. & H. 158). In Worcester, 1906, 5 O'M. & H. 213, after bribery 
by (igents had been proved, which avoided the election, the respondent 
against whom no personal charge had been made, did not further contest 
the i)etition, but the Court directed the representative of the Public 
Prosecutor to continue calling evidence upon the charges contained in 
the petition. 

It has been the practice at all recent petitions for the Public- 
Prosecutor to be represented at the trial by counsel. He has in addition 
appointed agents to assist him in petitions where he has called wit- 
nesses by the direction or by leave of the Court {e.g. in Hexham, 1892; 
Worcester, 1892; Rochester, 1892; Montgomery, 1892; see Day's M. Cas. 
25). The petitioner's solicitor was, on the application of counsel for the 
Pul>lic Prosecutor, directed by the Court to assist him in a recent petition 
where several witnesses were called by the Public I'rosecutor under the 
direction of the Court ( ^orces^er, 1906, 5 O'M. & H. 214). The Public 



ELECTION PETITION 189 

Prosecutor should also appear upon the hearing of an application to 
withdraw a petition ; in one case where there was no evidence that 

I copies of the affidavits had been sent to him, and he did not appear, 

' the application for leave to withdraw the petition was refused {Halifax, 
] 89^5, 4 O'M. & H. 203) ; but a recent petition claiming a recount and 
ci scrutiny was allowed by the Court to be withdrawn after the result 
of the recount was ascertained, although the Public Prosecutor was not 
represented (Apjylehj, 1906, 5 O'M. & H. 237). In York, 1898, ibid. 118, 
upon an application to withdraw a petition for a scrutiny the Public 

i Prosecutor was represented by counsel, and no objection being raised by 

' him, the petition was allowed to be withdrawn. 

Prosecution before Election Court. — The Public Prosecutor must, 

without any direction from the Election Court, when it appears that 

any person who has not received a certificate of indemnity has been 

I guilty of a corrupt or illegal practice, prosecute such person for the 

) ofifence before the Election Court, or if he thinks it expedient in the 

I interests of justice before any other competent Court (Corrupt and 

. Illegal Practices Act, 1883, s. 43 (3); see also Ipsivich, 1886, 4 O'M. & H. 

75; Belfast, 1886, ibid. 109). The latter course is usually adopted in 

! practice. 

When a person is prosecuted before an Election Court for any 

iirupt or illegal practice, and appears before the Court, the Court must 

I proceed to try him summarily. But in the case of a corrupt practice 

I the Court, before proceeding to try any person summarily, must give 

. him the option of being tried by a jury (s. 43 (4) of the Act of 1883 ; 

as to the consequences of conviction before an Election Court, see ibid. ; 

see also Corkupt Practices; Illegal Practices). Where a person 

I is so prosecuted, and either elects to be tried by a jury, or does not 

appear before the Court, or if the Court thinks it expedient that he 

should be tried before some other Court, the Court, if of opinion that 

the evidence is sufficient to put him upon his trial for the offence (see 

' R. v. Shellard, 1889, 23 Q. B. D. 273), must order him to be prosecuted 

on indictment, or before a Court of summary jurisdiction, as the case 

may require, and in either case may order him to be prosecuted before 

such Court as may be named in the order (see R. v. Riley, 1890, 59 

L J. M. C. 122), and for all purposes incidental to such prosecution the 

: offence is to be deemed to have been committed within the jurisdiction 

■ of the Court so named (s. 43 (5) of the Act of 1883). As to commit- 

' ting the accused for trial in the case of indictable offences, ordering him 

to brought before the Court of summary jurisdiction before whom he 

is to be prosecuted in the case of non-indictable offences, issuing summons 

for his attendance or warrant for apprehension when not present before 

the Court, and allowing him to give bail, see ibid. s. 43 (6). 

Costs. — The costs, charges, and expenses of and incidental to the 
presentation of a petition, and to the proceedings consequent thereon, 
are to be defrayed by the parties to the petition in sucli manner and in 
such proportions as the Court may determine, regard being had to the 
disallowance of any costs, charges, or expenses which may in tlie opinion 
of the Court have been caused by vexatious conduct, unfounded allega- 
tions, or unfounded objections on the part either of the petitioner or 
the respondent, and regard being had to the discouragement of any 
needless expenses by throwing the burden of defraying the same on the 



140 ELECTION PETITION 

parties by whom it has been caused, whether such parties are or not 
on the whole successful (s. 41 of the Act of 1868). 

Where it appears to the Election Court that a corrupt practice ha^ 
not been proved to have been committed in reference to the election b\ 
or with the knowledge and consent of the respondent, and that the 
respondent took all reasonable means to prevent corrupt practices bein- 
committed on his behalf, the Court may make one or more of tin 
following orders with respect to the payment of the whole or part d; 
the costs of the petition : — (1) If it appears to the Court that corrupt 
practices extensively prevailed, they may order the whole or part of tin 
costs to be paid by the county or borough; (2) if any persons aiv 
proved to have been extensively engaged in corrupt practices, or t' 
have encouraged or promoted extensive corruption, the Court may, after 
giving them an opportunity of being heard by counsel or solicitor, and 
examining and cross-examining witnesses to show cause why the order 
should not be made, order the whole or part of the costs to be paid l)y 
those persons, or any of them, and may order that if the costs cannot b' 
recovered from one or more of such persons they shall be paid by soni* 
other of such persons or by either of the parties to the petition (Corru}/ 
and Illegal Practices Prevention Act, 1883, s. 44 (1)). Moreover, whei' 
any person appears to the Court to have been guilty of a corrupt oi 
illegal practice, he may be ordered to pay the whole or any part of the 
costs of or incidental to any proceeding before the Court in relation tc 
such offence {ibid. s. 44 (2)). 

The costs of an election petition are, therefore, entirely in the 
discretion of the Court, such discretion, however, being exercised in 
axjcordance with the foregoing considerations. Though, as a general 
rule, the unsuccessful party has to pay the costs, the costs following 
the event (see Hereford, 1869, 1 O'M. & H. 196; Barrow-in-Fiirncss, 
1886, 4 O'M. & H. 83; Kennington, 1886, ibid. 95; Worcester, 189L^ 
ibid. 154; Manchester, 1892, ibid. 122; Halifax, 1893, ibid. 204; Elrjh 
and Nairn, 1895, 5 O'M. & H. 16; Lichfield, 1895, ibid. 38; LancoMc, 
im^,ibid. 52; Sunderlaml, 1896, ibid. 67; Maidstone, 1901, ihid. 154. 
Monmouth, 1901, ibid. 174; Islington, 1901, ibid. 131), yet where the 
expenses are very numerous, and where the petition is justified, though 
in the event the petitioner may be unsuccessful, and in some cases 
even where the petitioner succeeds, each party is frequently ordered t' 
pay his own costs (see Guildford, 1869, 1 O'M. & H. 15; Norwich, 1861' 
ibid. 12; Stafford, 1869, ihid. 234; Thornbury, 1886, 4 O'M. & H. 69: 
Stejmey, 1886, ibid. 58; Walsall, 1892, ibid, 129; Cirencester, 1893, ihitl 
199; Poiitefract, 1893, ibid. 201). In recent cases, moreover, theiv 
appears to be a tendency for the costs to be apportioned between tlu 
petitioners and respondents in respect of the various issues, the success- 
ful party being given the general costs of the petition, but having to 
pay the other side the costs of charges which failed (see Hexham, 1892, 
4 O'M. & H. 151; South Meath, 1892, ibid. 142; Rochester, 1892, ihir 
161; North Meath, 1892, ibid. 193; Southamioton, 1895, 5 O'M. c^' 11 
24; see also Haggerston, 1896, ibid. 88, and St. George's, 1896, ihid. 11(3 : 
Islington, 1901. ibid. 132; Bodmin, 1906, ibid. 235). ' 

In cases where the judges differ, or in respect of charges upon which 
the judges differ, no costs as a rule are ordered (see Doum, 188(1 
3 O'M. k H. 129; Montgomci^j, 1892,4 O'M. & H. 170; Haggerston. 
1896, 5 O'M. & H. 88; Greai Yarmouth, 1906, ibid. 199; but stv 
WorvcHter, 1900, ibid. 235). 



ELECTION PETITION 141 

, "Where the petition is caused by the conduct of the returning officer, 
\.g. by miscounting the ballot papers, the Court may order him to pay 
^he costs if he is a party to the petition (see East Clare, 1892, 4 O'M. 
kH. 166; Halifax, 1893, ihid. 205). But such an order is rarely made 
(see Hachiey, 1874, 2 O'M. & H. 87 ; Greenock, 1892, Day's El. Cas. 82). 
I With regard to the costs of the Public Prosecutor, it is provided 
that they are in the first instance to be paid by the Treasury ; but if 
for any reasonable cause it seems just, the Court may order all or part 
of them to be repaid to the Treasury by the parties to the petition, or 
'such of them as the Court may direct (Corrupt and Illegal Practices 
jPrevention Act, 1883, s. 43 (8)). In pursuance of this provision the 
ipei'sons whose conduct has rendered the costs of the Public Prosecutor 
necessary have in some cases been ordered to pay his costs. Thus in 
\Kcnniiujton (1886, 4 O'M. & H. 95) and Worcester (1892, ihid. 155), the 
petitioner, and in Hexham (1892, ihid. 152), the respondent, was ordered 
I to pay his costs, and in Rochester (1892, ihid. 161), two persons who 
'were found guilty by the Election Court were ordered to pay so much 
jof his costs as were solely attributable to their offences. In most cases> 
I however, the application for the costs of the Public Prosecutor, which 
is almost invariably made by his representative at the close of the 
petition, is not granted; for, although it is right that the Public 
Prosecutor should be represented, the parties to the petition should not,, 
unless under exceptional circumstances, be burdened with the expense 
(see Norwich 1886, 4 O'M. & H. 92 ; Londonderry, 1886, ihid. 104; 
\ Belfast, 1886, ihid. 109; Walsall, 1892, ihid. 129; Montgomery, 1892, 
im. 170; Finshury, 1892, ihid. 177; Pontefract, 1893, ihid. 202; South- 
ampton, 1895, 5 O'M. & H. 25; Lichfield, 1895, ihid. 38; Lancaster, 1896, 
ihid. 52; Haggerston, 1896, ihid. 88; aS';^. Georges, 1896, ihid. 116;, 
'Islington, 1901, ihid. 134; Maidstone, 1901, ihid. 154; Cockermouth,. 
'lOOl, zM. 1^0, Monmouth, 1901, ihid. 175; Worcester, 1906, ihid. 217). 

The judgment of the Election Court on the question of costs is final 

e Lovering v. Daivson, 1875, L. K. 10 C. P. 726). 

As to the taxation and recovery of costs of election petitions, see 

bcc. 41 of the Act of 1868, and Kule 55. The amount to be paid to any 

witness whose expenses are allowed by the judges (see s. 34) is to be 

; ascertained and certified by the Eegistrar (Kule 73 ; as to the effect of 

the Piegistrar's certificate see M'Laren v. Home, 1881, 7 Q. B. D. 477). 

I The Eules and Ilegulations of the Supreme Court of Judicature with 

, respect to costs to be allowed in actions, causes, and matters in the 

High Court are in principle, and so far as practicable, to apply to the 

: costs of election petitions, and no costs are to be allowed on a higher 

scale than would be allowed in any action, cause, or matter in the High 

, Court on the higher scale as between solicitor and client (Corrupt and 

' Illegal Practices Prevention Act, 1883, s. 44 (3)). 

Certificate and Eeport of Election Court. — Certificate. — At the 
I conclusion of the trial the judges who tried the petition must determine 
: whether the member whose return or election is complained of, or any 
' and what other person, was duly returned or elected, or whether the 
I election was void (s. 11 (13) of the Act of 1868). 

' In delivering judgment at the conclusion of the trial it is the practice 
t for the Election Court, unlike the old Election Committees, to state the 
[ reasons upon which their judgment is founded (see Ipswich, 1886, 4 O'M 
I & H. 71 ; Norivich, 1886, 'ihid. 90). 



142 ELECTION PETITION 

The judges must certify in writing such determination to the Speaker, 
and upon such certificate being given such determination is final to all 
intents and purposes (s. 11 (13) of the Act of 1868). The certiticat. 
must be under the hands of both judges (Parliamentary Elections an. 
Corrupt Practices Act, 1879, s. 2). If the judges differ as to whether 
the member whose return or election is complained of was duly returned 
or elected, they must certify that difference, and the member is to 1m 
deemed to be duly elected or returned; and if the judges determine tha 
the member was not duly elected or returned, but differ as to the rest <> 
the determination, they must certify that difference, and the election i 
to be deemed to be void {ibid.). 

Report as to Coirupt and Illegal Practices. — Where any charge i~ 
made in the election petition of any corrupt practice having been com 
mitted at the election the judges must, in addition to such certificate, 
and at the same time, report to the speaker as follows : (1) Whether 
any corrupt practice has or has not been proved to have been committed 
by or with the knowledge and consent of any candidate at the election, 
and the nature of such corrupt practice; (2) the names of all person- 
if any, who have been proved at the trial to have been guilty of an; 
corrupt practice ; (3) whether corrupt practices have, or whether ther> 
is reason to believe that corrupt practices have, extensively pre^'ailed 
at the election to which the petition relates (s. 11 (14) of the Act of 
1868). 

The report must contain similar particulars with regard to illegal 
practices, sec. 11 (14) of the Act of 1868 having now to be applied as 
if re-enacted with the substitution of "illegal practices" for "corrupt 
practices ; " and the judges must also report whether any candidate at 
the election has been guilty by his agents of any illegal practice in 
reference to such election (see Corrupt and Illegal Practices Preventioi' 
Act, 1883, s. 11). This report, like the certificate, must be under tli' 
hands of both judges (Parliamentary Elections and Corrupt Practice- 
Act, 1879, s. 2). 

If the judges differ as to the subject of a report to the Speaker, thev 
must certify that difference and make no report on the subject on whicl) 
they so differ {ibid.). 

The Election Court, when reporting that certain persons liave been 
guilty of any corrupt or illegal practice, must report whether tliost 
persons have or have not been furnished with certificates of indenmitv 
(Corrupt and Illegal Practices Prevention Act, 1883, s. 60). 

Such report is to be laid before the Attorney-General with a view t< 
liis instituting or directing a prosecution against such persons as havc: 
not received certificates of indenniity, if the evidence should, in his) 
opinion, be sufficient to support a prosecution (ibid.). , 

Hut before any person, other than a party to the petition or a 
candidate on behalf of whom the seat is claimed by the petition, i^ 
reiMjrted by the Election Court to have been guilty of any corrupt oi 
illegal practice, the Court must cause notice to be given to such person 
and if he appears in pursuance of the notice, must give him an oppor 
tunity of being heard " by himself," and of calling evidence in his defend 
to show why he should not be so reported (ibid. s. 38 (1)). 

The notice to attend and show cause against being reported is pre- 
pared by the Registrar of the Election Petition Court, and should be a> 
follows : — 



ELECTION PETITION • 143 

Form of Notice. 
The Parliamentary Elections Act, 1868, 

AND 

The Corrupt and Illegal Practices Prevention Acts, 
1883 AND 1895. 

Court for the Trial of an Election Petition for the 
in the County of holden at 

the day of 

Between 

, Petitioner, 

AND 

, Respondent. 

To 

You are hereby required to attend before the above Court 
at on the day of 

at o'clock in the noon, to show cause 

why you should not be reported by the said Court as having 
been guilty of a corrupt (or illegal) practice in having 

contrary to the provisions of the Corrupt and Illegal Practices 
Prevention Acts. 

And upon such hearing you may be represented by 
Counsel, and call Witnesses on your behalf if you desire 
to do so. 

As Witness our hands this day of 19 . 

Judges of the said Court. 

As to the service of such notice, see ihid. s. 62 (2). A person to whom 
notice is given to appear and show cause why he should not be reported 
has no right to be heard by counsel (see R. v. Mansel Jones, 1889, 23 
Q. B. D. 29), though in recent cases the Court have allowed counsel on 
Ijehalf of such persons to show cause against their being reported (see 
HexJiam, 1892, Day's EL Gas. 78 ; Rochester, 1892, ihid. ; counsel were 
also heard on behalf of persons showing cause in the petitions of 1900). 
A person so called on to show cause against being reported is liable to 
be cross-examined {Worcester, 1906, 5 O'M. & H. 215). 

■ As to what are corrupt and illegal practices, and as to the con- 
sequences of being reported guilty of corrupt or illegal practices by an 
Election Court, see Corrupt Practices ; Illegal Practices ; see also 
"•^i.ECTioN Commissioners. 

The report of the judges at the trial of an election petition is not 
nnal and conclusive, like their certificate, as to the matters contained in 
it. So where A., a candidate at an election, petitioned against the 



144 ELECTION PETITION 

return of B., and claimed the seat, and recriminatory charges were made 
but subsequently withdrawn at the trial, and the claim to the seat 
aljandoned, the judge certified that B. was not duly elected, and reported 
that he believed the election on the part of A. to have been perfectly 
pure; A. was returned at the ensuing election, and a petition was 
presented against his return, alleging corrupt practices by him and his 
a<'ent8 at the previous election ; it was held that notwithstanding the 
report, evidence could be given of the alleged corrupt practices (Stevens 
V. Tiliett (Nonvich), 1870, L. K. 6 C. P. 147). 

Special Report. — The judges may, when they make their report as to 
corrupt and illegal practices, at the same time make a special report to 
the Speaker as to any matters arising in the course of the trial, an 
account of which in their judgment ought to be submitted to the House 
of Commons (s. 11 (15) of the Act of 1868). Where the judges make a 
special report, the House of Commons may make such order in respect 
of it as they think proper {iUd. s. 14). ^ 

Relief. — As to the circumstances under which candidates, the Election 
Agents, and other persons may on application obtain relief from the 
consequences of the illegal acts of themselves or their agents reported 
by the Election Court, see the Corrupt and Illegal Practices Prevention 
Act, 1883, ss. 22, 23, and 24; see also Relief. 



II. MUNICIPAL AND OTHER ELECTION PETITIONS. 

Municipal Elections. — Former Procedure. — Municipal elections 
nntil 1872 could only be questioned by means of an information in 
the nature of a qito loarranto. The Corrupt Practices (Municipal 
Elections) Act, 1872, 35 & 36 Vict. c. 60, substituted procedure by 
means of election petition for the former procedure by quo warranto. 

Present Practice. — The procedure for questioning a municipal election 
by petition is now regulated by Part IV. of the Municipal Corporations 
Act, 1882, 45 & 46 Vict. c. 50, as amended by the Municipal Elections 
(Corrupt and Illegal Practices) Act, 1884, 47 & 48 Vict. c. 70, and the 
General Rules for the effectual execution of Part IV. of the Municipal 
Corporations Act, 1882, made in 1883 by the judges for the time being 
on the rota for the trial of parliamentary election petitions. As to 
these rules of procedure, see sec. 100 (1) and (2) of the Act of 1882. 
and sec. 30 {h) of the Act of 1884, which transfers the power of 
making rules from the judges on the rota to the Rule Committee of 
the judges. 

The procedure provided by the Acts of 1882 and 1884, and the 
Municipal Election General Rules made thereunder, is founded on, and 
as nearly as the circumstances admit identical with, that which regulates 
parliamentary election petitions. It is, moreover, expressly enacted that, 
subject to the ])ro visions of the Act of 1882 and of the rules nnuU* 
inuier it, the principles, practice, and rules for the time being observed 
in the case of parliamentary election petitions, and, in particular, the 
lirincjijles and rules with regard to agency and evidence, and to a 
scrutiny, and to the declaring any person elected in the room of any 
other ])er8on declared to have been not duly elected, shall be observed. 
as far as may be, in the case of a municipal election. It follows also 



ELECTION" PETITION 145 

that the decisions cited with reference to parliamentary election peti- 
tions are applicable to municipal election petitions. 
I It is therefore unnecessary here to recapitulate what has already 
been said with regard to parliamentary election petitions, which, subject 
to the necessary modifications, is to a great extent applicable to muni- 
cipal elections, but some points of difference with regard to municipal 
election petitions may be briefly noticed. 

Procedure hj Quo Warranto. — Procedure by information in the 
nature of a quo vxtrranto is still available against any person claiming 
!to hold a corporate office who becomes disqualified after election within 
twelve months of the time when he became disqualified (see the M. C. 
Act, 1882, s. 225). It would appear also to be available in other cases, 
it being provided that every municipal election not called in question 
within twelve months after the election, either by election petition or hij 
linformation in the nature of a quo warranto, is to be deemed to have 
been to all intents a good and valid election {ibid. s. 73 ; see, however, 
Pritchard v. Mayor, etc., of Bangor, 1888, 13 App. Gas. 241). But quo 
kmriYtnto is not available in cases where an election petition lies (see 
ibid. s. 87 ; see also B. v. Morton, [1892] 1 Q. B. 39). As to the pro- 
cedure on an information in the nature of a qiw warranto, see Crown 
Office Kules, 1906 ; see also the article Quo Warranto. 

Grounds of Election Petition. — A municipal election may be questioned 
Ity an election petition on any of the following grounds : — 

(1) That the election was, as to the borough or ward, wholly avoided 
1 IV general bribery, treating, undue influence, or personation ; 

(2) That the election was avoided by corrupt practices, or offences 
jagainst Part IV. of the M. C. Act, 1882, committed at the election ; 

(3) That the person whose election is questioned was at the time of 
tlie election disqualified ; 

(4) That he was not duly elected by a majority of lawful votes- 
IM. C. Act, 1882, s. 87 (1)). 

(5) That the election was avoided by any illegal practice, or by the 
lextensive prevalence of illegal practices, or the offences of illegal pay- 
iment or hiring (M. E. (C. & I. P.) Act, 1884, ss. 8 and 18). 

' A municipal election cannot be questioned on any one of those 
Igi-ounds except by an election petition (M. C. Act, 1882, s. 87 (2)). 

Petitioners. — A municipal election petition may be presented either 
by four or more persons who voted, or had a right to vote, at the 
'election, or by a person alleging himself to have been a candidate at 
the election (M. C. Act, 1882, s. 88 (1)). 

Respondents. — Any person whose election is questioned by the peti- 
tion, and any returning officer of whose conduct a petition complains, 
may be a respondent to the petition (ibid. s. 88 (2)). 

Time for Petitioning. — A municipal election petition must be pre- 
'sented within twenty-eight days after the day on which the election 
was held, except that if it complains of the election on the ground of 
'Corrupt practices, and specifically alleges that a payment of money or 
other reward has been made or promised since the election by a person 
[elected at the election, or on his account, or with his privity, in pur- 
VOL. V. 10 



146 ELECTION PETITION 

suaiice or furtherance of such corrupt practices, it may be presented at 
any time within twenty-eight days after the date of the alleged payment 
or promise, whether or not any other petition against that person haa 
been previously presented or tried {ibid. s. 88 (4)). 

A municipal election petition complaining of the election on the 
groimd of an illegal practice may be presented at any time within 
fourteen days after the day on which the Town Clerk receives the return 
and declaration respecting election expenses, or within the like time 
after the date of the allowance of an authorised excuse for failing to 
make the return and declaration (M. E. (C. & I. P.) Act, 1884, s. 25 (1)). 
When the petition complains of an illegal practice, and specifically 
alleges a payment or other act since the election by the candidate 
elected, or by his agent, or with his privity, in pursuance or furtherance 
of such illegal practice, it may be presented at any time within twenty- 
eight days after the date of such payment or act, whether or not any 
other petition against that person has been previously presented or tried 
{iUd. s. 25 (2)). 

Form of Petition, etc. — The petition should be in the form given in 
Kule 5 of the Municipal Election General Rules, or to the like effect. 
The rules with regard to the form, contents, presentation, and service 
of a municipal election petition are the same as in the case of parlia- 
mentary election petitions. 

Security for Costs. — At the time of presenting a municipal election 
petition, or within three days afterwards, the petitioner must give 
security for all costs, charges, and expenses which may become payable 
by him to any witness summoned on his behalf or to any respondent 
<M. C. Act, 1882, s. 89 (1)). 

The security must be to such an amount not exceeding £500 as the 
High Court or a judge thereof on summons directs {ihid. s. 89 (2)). The 
mode of giving security is by deposit or by recognisance as in parlia- 
mentary petitions. 

Interlocviory Matters. — All interlocutory matters, except as to the 
sufficiency of security and the withdrawal of a petition, are to be heard 
and disposed of before a judge (Municipal Election General Rules, r. 57). 
The High Court has the same powers, jurisdiction, and authority with 
respect to a municipal election petition and the proceedings thereon as 
in an ordinary action {ihid., and M. C. Act, 1882, s. 100 (4)). With- 
drawal of a municipal election petition can only be by leave of tlie 
Election Court or High Court on special application {ibid. s. 95). The 
provisions and rules with reference to amendment of petition, particuhirs, 
recount, withdrawal of petition, etc., are the same in municipal as in 
parliamentary petitions. 

Special Case. — If, on the application of any party to a petition made 
in the prescribed manner to the High Court, it appears to the High 
Court that the case raised by the petition can be conveniently settled 
as a special case, the High Court may direct the same to be stated accord- 
ingly {ihid. 8. 93 (7)). The special case is heard before the High Court, 
and the decision of the High Court is final {ibid.). The application for 
a special case is made by summons before a judge at chambei*s (see 
Municipal Election General Rules, r. 48). 



ELECTION PETITION ' 147 

Constitution of Election Cmirt. — A municipal election petition is tried 
by an Election Court consisting of a Commissioner, who is a barrister of 
at least fifteen years' standing, appointed by the judges on the rota for 
the trial of parliamentary election petitions. The barrister must not be 
a member of the House of Commons, or hold any office or place of profit 

' under the Crown, other than that of Eecorder, and he is not qualified to 
constitute an Election Court for the trial of an election petition relating 
to any borough for which he is Eecorder, or in which he resides, or 
which is on his circuit. If the Commissioner to whom the trial of a 
petition is assigned dies, or declines, or becomes incapable, to act, the 

! judges on the rota, or two of them, may assign the trial to be conducted 
or continued by any other of the Commissioners appointed. See sec. 92 

. (l)-(5) of the M. C. Act, 1882. 

The judges for the time being on the rota for the trial of parliamentary 
election petitions, or any two of them, may annually appoint as many 

f barristers, not exceeding five, as they may think necessary, to be Com- 
missioners for the trial of municipal election petitions, and are from time 
to time to assign the petitions, whether relating to municipal or other 

> elections to which the Municipal Elections (Corrupt and Illegal Prac- 
tices) Act, 1884, extends, to be tried by each Commissioner (M. E. (C. 
& I. P.) Act, 1884, s. 36 (2)). 

Foiuers of Election Court. — The Election Court has for the purposes 
of the trial the same powers and privileges as a judge on the trial of a 

• parliamentary election petition, except that any fine or order of com- 
mittal by the Court may on motion by the person aggrieved be dis- 
charged or varied by the High Court, or in vacation by a judge thereof, 
on such terms, if any, as the High Court or judge think fit (M. C. Act, 

; 1882, sec. 92 {h)). 

Except in this respect no appeal lies from the Commissioner to the 

High Court (see Ex parte Ayres, 1886, 54 L. T. K S. 296 ; Preece v. 

Hcirdinr/, 1889, 24 Q. B. D. 110 ; Marsland v. Hickman, 1886, 2 T. L. K. 

•398). The Municipal Election Court is a Court of Kecord {R. v. The 
' Mayor, etc., of Maidenhead, 1882, 9 Q. B. D. 494). 

Expenses of Election Court. — The remuneration and allowances to be 
paid to the Commissioner for his services in respect of the trial of a 

' municipal election petition, and to the officers, clerks, or shorthand 
writers employed, are to be fixed by a scale made and varied by the 
election judges on the rota for the trial of parliamentary election 
petitions, with the approval of the Treasury (M. C. Act, 1882, s. 
101(1)). 

The remuneration and allowances must be paid in the first instance 
by the Treasury, and must be repaid to the Treasury, on their certificate, 

i out of the borough fund or borough rate (ibid.). 

The Election Court has power, however, in its discretion to order 
such remuneration and allowances, or the expenses incurred by the 

j Town Clerk for receiving the Election Court, to be repaid, wholly or in 

■ part, to the Treasury or the Town Clerk, as the case may be, by the 
petitioner when in the opinion of the Election Court the petition is 

' frivolous and vexatious, or by the respondent when in the opinion of 

♦ the Election Court he has been personally guilty of corrupt practices at 

* the election (ibid. s. 101 (2)). An order so made for the repayment of 
any sum by a petitioner or respondent may be enforced as an order for 



148 ELECTION PETITION 

payment of costs, but the deposit or security for costs may not Ije 
applied for any such repayment until all costs and expenses payable by 
the petitioner or respondent to any party to the petition have been 
satisfied {ibid. s. 101 (3)). 

Place of Trial. — The place of trial of a municipal election petition 
must be within the borough. But the High Court may, on being satis- 
fied that special circumstances exist rendering it desirable that the 
petition should be tried elsewhere, appoint some other convenient place 
for trial (M. C. Act, 1882, s. 93 (5)). 

Trial. — The procedure at the trial of a municipal election petition, 
and the principles and practices as to evidence, the attendance and 
examination of witnesses, scrutiny, recriminatory case, and costs, are the 
same as in parliamentary petitions (see M. C. Act, 1882, ss. 93, 94, and 
100 (3), and the M. E. (C. & I. P.) Act, 1884, ss. 29 and 32). 

The Public Prosecutor must attend (by his representative) at every 
trial of a municipal election petition, and his duties with regard to 
calling and examining witnesses and the prosecution of offenders are 
also similar to those in parliamentary petitions (see M. E. (C. & I. P.) 
Act, 1884, ss. 28 and 30). 

Certificate and Report of Election Conrt. — At the conclusion of tlie 
trial the Municipal Election Court must determine whether the person 
whose election is complained of, or any and what other person, was 
duly elected, or whether the election was void, and must forthwith 
certify in writing the determination to the High Court, and the 
decision is final to all intents as to the matters at issue in the petition 
(M. C. Act, 1882, s. 93 (4); see also Ex parte Ayres, 1886, 54 L. T. X. 
S. 296 ; Marsland v. Hickman, 1886, 2 T. L. R 398). Where the 
petition charges any corrupt or illegal practices, the Election Court 
must make a report to the High Court as to the persons guilty, the 
prevalence of such offences in the borough or ward, and whether or 
not the persons reported have been furnished with certificates of 
indemnity, which report is similar to the report sent by the judges 
on the trial of a parliamentary election petition to the Speaker (see 
the M. C. Act, 1882, s. 93 (5) and (6), and the M. E. (C. & I. P.) Act, 
1884, 88. 3 (2), 8 (1) and (2), and 30). 

A copy of any certificate or report made to the High Court on the 
trial of a municipal election petition, and, in the case of a decision 
by the High Court on a special case, a statement of the decision must 
be sent by the High Court to the Secretary of State ; and a copy of 
any such certificate, and a statement of any such decision, must also 
be certified by the High Court, under the hands of two or more judges 
thereof, to the Town Clerk of the borough (M. C. Act, 188^, s. 93 (12)). 

Iteservation of Points of Laiv.—li it appears to the Election Court 
on the trial of a petition that a question of law as to the admissibility 
of evidence or otherwise requires further consideration by the High 
Court, the Election Court may postpone the granting of a certificate 
until tlie question has been determined by the High Court, and for 
i\m purpose may reserve any such question, as questions may be 
roHcrved by a judge on a trial at Nisi l»rius {ihid. s. 93 (8)). Upon a 
point of law so reserved an appeal lies from the King's Bench Division 



ELECTIONS 149 

by leave of that Court to the Court of Appeal (Judicature Act, 1881, 
44 & 45 Vict. c. Q8, s. 14). 

Prosecution for Election Offences. — The procedure for the prosecution 
of a corrupt or illegal practice, or any illegal payment, employment, or 
hiring, committed in reference to a municipal election, and the removal 
of any incapacity incurred by reason of a conviction or report relating 
to any such offences, and the duties of the Public Prosecutor in relation 
thereto, including the grant to a witness of a certificate of indemnity, 
is the same as if such offence had been committed in reference to a 
parliamentary election, and sees. 45, 46, 50-57, 59, and 60 of the Corrupt 
and Illegal Practices Prevention Act, 1883, apply accordingly, with the 
necessary modifications, and with some few additions (see M. E. (C. & 
I. P.) Act, 1884, s. 30). 

Municipal Elections in City of London. — The provisions of the 
Municipal Corporations Act, 1882, Part IV., with regard to election 
petitions, as amended by the Municipal Elections (Corrupt and Illegal 
Practices) Act, 1884, apply, with the necessary modifications, to a 
municipal election in the City of London (see sec. 35 of the M. E. 
(C. & I. P.) Act, 1884). 

County Council Elections. — The same provisions also apply to 
County Council elections, subject to such modifications as are neces- 
sary to make them, applicable, and so far as is consistent with the 
provisions of the Local Government Act, 1888, 51 & 52 Vict. c. 41 
(see sec. 75 of that Act). 

Parish and District Council Elections, etc. — The same pro- 
visions are, by the Local Government Act, 1894, 56 & 57 Vict. c. 73, 
applied to Parish Council elections and other elections under that Act, 
subject to the adaptations, alterations, and exceptions made by the 
rules framed under the Act (see sec. 48 of that Act). See also Parish 
Councillors' Election Order, 1901 ; Eural District Councillors Election 
Order, 1898; Urban District Councillors' Election Order, 1898; 
Guardians' Election Order (London), 1898 ; Guardians' Election Order 
(outside London), 1898. 

Metropolitan Borough Council Elections. — The same provisions 
are applicable in the case of Metropolitan Borough Council elections 
which are regulated by the London Government Act, 1899, 62 & 63 
\'ict. c. 14 (see sec. 2 (4) and (5) of that Act). See also Metropolitan 
Ijorough Councillors' Election Order, 1903. 

See also Corrupt Practices; Illegal Practices; Eecount; 
Kelief; Scrutiny, etc. 

\Antliorities. — Ptogers on Elections, 18th ed., vol. ii. (Parliamentary), 
1006; vol. iii. (Municipal, etc.), 18th ed., 1906.] 

Elections. 

TABLE OF CONTENTS. 
PARLIAMENTARY ELECTIONS. 



The Writs for Election— 

Insue of Writs for Eledioti . 150 

Form of Writ for Election . 151 

Transmission of Writs . .162 



The Returning Officer — 

At County Elections . .153 

At Borough Elections . .153 

At University Elections . .154 



150 



ELECTIONS 



Exemptions fro7)i Office of .154 
Expenses of .... 154 

Duties of . . . .154 

The Election— 

Notice of Election . . .155 

DaU of Election . . .156 

Place of Election . . .157 

Time of Eledimi . .157 

The Candidates . . .157 

Nomination of Candidates . 157 

Unopposed Election . .158 

Contested Election . . .158 
DecUh of Candidate before Poll 158 

The Poll— 

Notice of Poll . . .158 

Polling Districts . . .159 

Polliiuf Stations . . . 160 

Presiding Officers . . .162 

Pollijig Clerks . . .162 

Polling Agents, etc. . .162 

Date of Poll . . . .163 

Duration of Poll . . .163 

Voting at the Poll . . . 163 
The Poll at University Elections 164 



Adjournment of Poll 
Proceedings at Close of Poll 

Counting the Votes — 

Agents for Counting Votes 
Procedure on Counting Votes . 
Rejection of Ballot Papers 
Equality of Votes, Casting 

Vote . 
Miscount and Recount 
Verification of Ballot 

Accounts 
Subsequent Custody of 

Papers 
Secrecy of the Ballot 

Declaration of Election 

The Return — 

Mode of making Return 

Double Return 

Special Return 

Delay in making Return, etc. 

Amendment of Return 

General 



Paper 
Ballot 



167 
167 



168 
168 
168 

169 
169 

169 

170 
170 

170 



171 
172 
172 
172 
172 

173 



II. MUNICIPAL AND OTHER ELECTIONS. 



Municipal Elections — 
Introductory 
Meaning of Municipal Elec 

tion .... 
Vacancies occasioning Elec 

tion .... 
Election of Mayor 
Election of Aldermen 
Election of Councillors — 

Tlie Returning Officer . 

Notice of Election 

Nomination of Candidates 

JVithdrawal of Candidate 

Unopposed Election 

Contested Election 

Polling Districts . 

Polling Stations, etc. . 

Agents at Municipal Elec 
tions 

The Poll . 

Questioning Voters at tJie 
Poll 

Counting the Votes 

Casting Vote 

Double Election of Councillor 



174 

174 

174 
175 
175 

176 
176 
178 
179 
180 
180 
180 
180 

181 
181 

182 
182 
182 
182 



Custody of Ballot Papers, etc., 

after the Poll . . .182 
Expenses of Municipal Election 1 83 

Election OF Elective Auditors 183 

Acceptance of Corporate 
Office 183 

Resignation of Corporate 
Office . . . .184 

Penalty for Acting in « 
Office if Unqualified . 184 

Mandamus to Compel Elec- 
tion 184 

Proceedings to Test Validity 
OF Election . . . .184 

Municipal Elections in the 
City of London . . . 185 

County Council Elections . 185 

Parish Council and District 
Council Elections, etc. . . 186 

Metropolitan Borough Council 
Elections . » . / . .188 



I. pakliamentaey elections. 

The Writs for Election.— 7s^e of Writs far Medion.—Memheis 
of the House of Commons are elected in pursuance of writs issued from 
the office of the Clerk of the Crown in Chancery (see the Great Seal 
(Offices) Act, 1874, 37 & 38 Vict. c. 81, s. 5). The writs for the election 
of knights, citizens, and burgesses to serve in Parliament are issued 
under the authority of a Koyal Proclamation, in pursuance of which an 



ELECTIONS 151 

order from the Crown in Council commands the Lord High Chancellor 
of Great Britain and the Lord High Chancellor of Ireland (or the Lords 
Keepers or Lords Commissioners of the Great Seal, if these offices be 
vacant) to cause writs to be issued (see Simeon, Law of Elections, 2nd 
ed., p. 142 ; Orme, Digest of Election Laws, 2nd ed., pp. 1 et seq. ; Eoe, Law 
of Elections, 2nd ed., vol. i. p. 345). 

In the case of the seat of any member being vacated for any cause 
(hiring the session, on motion made a warrant is signed by the Speaker, 
directing the Clerk of the Crown in Chancery to issue a writ for the 
election of a member. As to the various causes of the vacating of seats, 
see Parliament; see also Eogers on Elections, 18th ed., vol. ii. ch. ii. pp. 
44-54. 

If after the writ is issued it be found that the seat is not in fact 
vacant, a supersedeas to the writ must be moved for {e.g. Rye, 1826, 
81 Com. Journ. 223; Preston, 1830, 86 iUd. 134; Evesham, 1830, ibid. 
182 ; see also Simeon, Law of Elections, 2nd ed., p. 144). 

The issue of a writ by the Speaker during any recess of the House 
of Commons, whether by prorogation or adjournment in the case of a 
member dying or becoming a peer of the United Kingdom, is provided 
for by the Eecess Elections Act, 1784, 24 Geo. ill. c. 26. As to the issue 
of a writ in the case of the acceptance of any disqualifying office by a 
member during a recess, see 21 & 22 Vict. c. 110; and in the case of 
a seat becoming vacant by bankruptcy, see the Bankruptcy Act, 1883, 
46 & 47 Vict. c. 52, s. 33. 

Form of Writ for Election. — The form of writ for a county or 
borough now in use at a general election is set forth in Sched. II. of 
the Ballot Act, 1872, 35 & 36 Vict. c. 33, and is as follows:— 

Fm^m of Writ foi' a County, or Borough, at a Parliamentary Election. 

Edward the Seventh, by the Grace of God, of the United Kingdom 
of Great Britain and Ireland, and of the British Dominions beyond the 
Seas, King, Defender of the Faith, to the Sheriff [or other Keturning 
Officer] of the county [w borough] of , greeting : 

Whereas by the advice of our Council we have ordered a Parliament 
to be holden at Westminster on the day of next. We 

command you that notice of the time and place of election being first 
duly given, you do cause election to be made according to law of 
members [or a member] to serve in Parliament for the said county [tw* 
the division of the said county, or the borough, or as the case 

may be] of , and that you do cause the names of such members 

[or member] when so elected, whether they [or he] be present or absent, 
to be certified to us in our Chancery without delay. 

Witness ourself at Westminster, the day of in 

the year of our reign, and in the year of our Lord 19 . 

A writ at a bye election is in the following form : — , 

Farm of Writ at Bye Election. 

Edward, etc. [as above]. Whereas A. B., Esq., was lately chosen 
member for the county [o?* as the case may be] of for the present 

Parliament summoned to be holden in our city of Westminster the 



152 ELECTIONS 

(Jay of now last past, and from thence by our several writs 

prorogued to and until the day of in the 

year of our reign [as tlie case may he] and there now holden ; and whereas 
the Honourable Sir [C. D.], knight, and the Honourable Sir [E. F.], 
knight, being two of the judges on the rota for the trial of election 
petitions, have in accordance with " the Parliamentary Elections Act, 
1868," duly adjudged the election of the said A. B. to be void, w the 
said A. B. is since dead, or is become a peer, etc. [as the case may he\ as 
by the letter of our right trusty and well-beloved councillor , 

Speaker of our Lower House of Parliament, more fully and plainly 
appears. We command you that in the place of the said A. B., within 
the county [or borough or division] aforesaid, notice of the time and 
place, etc. [the remainder of the iviit is in the same foi-m as tJie writ fm- a 
general election ; see ante\ 

The writs are addressed as follows to the Eeturning Officer of the 
county or borough (see post, under the head BeturniTig Officer) : — 

Foi'm of Label or Direction of Writ. 

To the Sheriff [w other Returning Officer] of 

A writ of a new election of members [or member] for the said county 
[or division of a county o?* borough, w as the case may be]. 

Transmission of Writs. — The expeditious and regular conveyance of 
the writs for parliamentary elections is provided for by the Parlia- 
mentary Writs Act, 1813, 53 Geo. iii. c. 89, which directs that the 
messenger or pursuivant of the Great Seal (now the officer to whom his 
duties are transferred ; see the Great Seal (Offices) Act, 1874, 37 & 38 
Vict. c. 81, s. 4), or his deputy, must after receiving the writs forthwith 
carry such of tliem as are directed to the sheriffs of London or sheriff of 
Middlesex to the offices of such sheriffs; and all other writs to the 
(General Post Office in London, and then deliver them to the postmaster 
or his deputy, who must give an acknowledgment in writing of their 
receipt, expressing therein the time of delivery, and must keep a dupli- 
cate of such acknowledgment signed by the parties to whom and by 
whom the writs were so delivered. The postmaster must despatch the 
writs, free of postage charges, by the first post after receiving them, 
under covers respectively directed to the officer or officers to whom the 
writs are respectively directed, accompanied with directions to the post- 
master or deputy postmaster of the town or place, or nearest to the town 
or place, where such officer or officers hold his or their office, requiring 
such postmaster or deputy forthwith to carry such writs respectively to 
such office, and to deliver them to the officer or officers to whom they 
are respectively directed, who must give a signed receipt for the same, 
setting forth the day and hour of delivery ; this receipt is also to be 
signed by the jxjstmaster or deputy, who must transmit it to the General 
Post Oftice in I^ndon, where it nnist be entered and filed, and kept 
witli the duplicate of the acknowledgment signed by the messenger, 
HO that they may be inspected or produced upon all proper occasions by 
any i)er8on interested in the elections (see the l\arliamentary Writs Act, 
18L'{, s. 1). Any wilful neglect or delay in delivering or transmitting 
a writ is a misdemeanor (ibid. s. 6). 



ELECTIONS 153 

The writs must be delivered to the proper officer to whom the 
execution thereof belongs (i.e. the lieturning Officer) or his deputy, 
and to no other person, and every such officer upon the receipt of the 
writ must indorse upon the back of it the day he received it (see 7 & 8 
Will. III. c. 25, s. 1). The form of such indorsement, given in the Ballot 
Act, 1872, Sched. XL, is as follows : — 

Form of Endoisement upon Writ. 

Received the within writ on the day of 19 . 

(Signed) A. B., 

High Sheriff [w Sheriff, or Mayor, or as the case may he\ 

The Returning Officer. — At County Elections. — The Returning 
Officer in counties and divisions of counties is the sheriff of the county, 
and in counties of cities and towns the sheriff of the county of a city or 
town. 

In all matters relative to the election of members to serve in Parlia- 
ment for any county, or for any riding, parts or division of a county, the 
sheriff of the county, his under-sheriff, or any lawful deputy, has power 
to act in all places having any exclusive jurisdiction or privilege, in the 
same manner as such person may act within any part of the sheriff's 
ordinary jurisdiction (Representation of the People Act, 1832, 2 & 3 
AVill. IV. c. 45, s. 66). 

When the sheriff is Returning Officer for more than one county, as 
defined for the purposes of parliamentary elections {i.e. for more than one 
division of a county), he may, by writing under his hand, appoint a fit 
person to be his deputy for all or any of the purposes relating to an 
election in any such county, and may by himself or by such deputy 
exercise any powers and do any things which the Returning Officer is 
authorised to exercise or do in relation to such election. Every such 
deputy, and also any under-sheriff' in so far as he acts as Returning 
Officer, is deemed to be the Returning Officer (Ballot Act, 1872, s. 8). 

In the event of the death of the sheriff' before the expiration of his 
year of office, the under-sheriff is answerable for the execution of the 
office until another sheriff' be appointed (see the Sheriff's Act, 1887, 50 
& 51 Vict. c. 55, s. 25 ; there is a similar provision where a sheriff is a 
militia officer embodied for actual service, see the Militia Act, 1882, 45 
'- 46 Vict. c. 49, s. 40). 

At Borough Elections. — With regard to boroughs (other than cities 
and towns being counties of themselves) the mayor is the Returning 
Officer at parliamentary elections (Municipal Corporations Act, 1882, 
45 & 46 Vict. c. 50, s. 244 (1)). If there are more mayors than one 
within the boundaries of a parliamentary borough, the mayor of tliat 
borough to which the writ of election is directed is to be the Returning 
Officer {ihid. s. 244 (2)). In any such case the writ is to be directed to 
the mayor of that one of the municipal boroughs to the mayor of which 
the writ was directed before the passing of the Redistribution of Seats 
Act, 1885 ; or if it has not been directed to any such mayor, then to the 
mayor of the borough which has the largest population according to the 
last census (see Redistribution of Seats Act, 1885, 48 & 49 Vict. c. 23, 
«. 12 (4)). If when a mayor is required to act as Returning Officer he 
is absent, or incapable of acting, or there is no mayor, the council must 
forthwith choose an alderman to be Returning Officer (Municipal Corpo- 



154 ELECTIONS 

rations Act, 1882, s. 244 (3)). It is also provided by the Eeturning 
Otticers Act, 1854, 17 & 18 Vict. c. 57, s. 1, that in all cases whenever, 
eitlier from temporary vacancy or from some other cause, there is no 
person duly qualified to perform the duties of Returning Officer iu 
any borough, city, or town, the sheriff of the county in which such 
borough, city, or town is situate must perform the duties of Returning 
Otticer. 

As the appointment of a Returning Officer by the sheriff of the 
county, in the case of certain boroughs for which Returning Officers 
were not appointed by the Representation of the People Act, 1832, 
2 & 3 Will. IV. c. 45, and which have not been subsequently incorporated, 
see sec. 11 of that Act, and the Redistribution of Seats Act, 1885, 48 & 
49 Vict. c. 23, s. 12; in the case of any parliamentary borough created 
by the Representation of the People Act, 1867, 30 & 31 Vict. c. 102, 
which is not and does not include a municipal borough, see sec. 47 of 
that Act ; and in the case of parliamentary boroughs constituted under 
the Redistribution of Seats Act, 1885, in which there is no mayor, see 
sec. 12 (1) of that Act. 

The Returning Officer in boroughs constituted under the Re- 
distribution of Seats Act, 1885, the area of which was previously 
comprised in the parliamentary borough of Westminster, is to be the 
high bailiff of Westminster, who may appoint a deputy returning officer 
in any such borough (see Redistribution of Seats Act, 1885, s. 12 (5) 
and (6)). 

At University Elections. — At University elections the Returning 
Officer is the Vice -Chancellor of the University, who may appoint 
pro-Vice-Chancellors to act as deputies at the poll. As to the Uni- 
versities of Oxford and Cambridge, see the Parliamentary Elections 
Act, 1853, 16 & 17 Vict. c. 68, and the University Elections Act, 1861, 
24 & 25 Vict. c. 53, s. 2 ; as to the University of London, see the 
Representation of the People Act, 1867, ss. 41 and 44 ; as to the Scotch 
Universities, see the Representation of the People (Scotland) Act, 1868, 
31 & 32 Vict. c. 48, s. 37 ; and as to the University of Dublin, in which 
the Provost of Trinity College is the Returning Officer, see the Uni- 
versity Elections Act, 1861, 24 & 25 Vict. c. 53, s. 2. 

Exemptions from Office of. — As to the persons who are exempted from 
the office of Returning Officer, see Returning Officer. 

Expenses of. — The Returning Officer may require security or deposit 
for his election charges (see Parliamentary Elections (Returning Officers) 
Act. 1875, 38 & 39 Vict. c. 84, s. 3). As to the detailed account of the 
Returning Officer's charges in respect of the election, which must be 
transmitted by him to the Election Agent within twenty-one days after 
the return of the elected candidate, see the Parliamentary Elections 
(Returning Officers) Act, 1875, s. 4, and the Corrupt and Illegal Prac- 
tices Prevention Act, 1883, 46 & 47 Vict. c. 51, s. 32 (2); 'this, however, 
does not apply to University elections (Parliamentary Elections (Return- 
ing Officers) Act, 1875, s. 8) ; see also Returning Officer ; and generally 
as Ui the expenses of the Returning Officer in connection with the 
election, see Returning Officer; see also Election Expenses. 

huticH of — As to the duties of the Returnhig Officer with reference 
to ballot papers and ballot boxes, see Ballot, and generally as to his 
chities in connection with the election, see post) see also Returning 
Okficek. 

The misconduct of, or irregularities committed by, the Returning 



ELECTIONS 155 

, Officer in relation to the polling or counting of votes may be the ground 
of an election petition ; as to this, and as to visiting the Eeturning Officer 
with costs in certain events, see Election Petition. 

The Election. — Notice of Election. — The Eeturning Officer must, in 
the case of a county election, within two days after the day on which he 
receives the writ, and, in case of a borough election, on the day on which 
he receives the writ or the following day, give public notice, between the 
hours of nine in the morning and four in the afternoon, of the day on 
which and the place at which he will proceed to an election, of the time 
appointed for the election, of the day on which the poll will be taken in 
case the election is contested, and of the day on which and the time and 
place at which forms of nomination papers may be obtained. In the case 
of a county election the Returning Officer must send one of such notices 
by post, under cover, to the postmaster of the principal post office of each 
,; polling place in the county, indorsed with the words " Notice of Election." 
The notice is to be forwarded free of charge, and the postmaster receiving 
it must forthwith publish it in the same manner in which post office 
notices are usually published (Ballot Act, 1872, Sched. I. r. 1). 

The form of notice of parliamentary election, which is given in Sched. 
11. of the Ballot Act, 1872, is as follows:— 

Fmm of Notice of Farlianientary Election. 

The Returning Officer of the of will, on 

the day of now next ensuing, between the 

hours of and , proceed to the nomination, and, if there 

is no opposition, to the election, of a member [m^ members] for the 

1 Notc^in- saj(j county [or division of a countv w borough] at the .^ 

tion of place Forms of nommation paper may be obtamed at / 

and room. <• i 

between the hours of and on 

Every nomination paper must be signed by two registered 
electors as proposer and seconder, and by eight other registered 
electors as assenting to the nomination. 

Every nomination paper must be delivered to the Returning 
Officer by the candidate proposed, or by his proposer and seconder, 
between the said hours of and on the said 

day of at the said .^ 

Each candidate nominated, and his proposer and seconder, and 
one other person selected by the candidate, and no other persons, 
are entitled to be admitted to the room. 

In the event of the election being contested, the poll will take 
place on the day of 

(Signed) A.B., 

Sheriff [w Mayor, or as the case may be]^ 
day of 19 . 

Take notice, that all persons who are guilty of bribery, treating, 
undue influence, personation, or other corrupt practices at the said 
election will, on conviction of such off'ence, be liable to the penalties 
mentioned in that behalf in "The Corrupt Practices Prevention 
Act, 1854," and the Ballot Act, 1872, and the Acts amending 
the said Acts. 



156 ELECTIONS 

In Sched. II. of the Parliamentary Elections (Keturning Ofticers) 
Act, 1875, 38 & 39 Vict. c. 84, is contained a notification in the following 
form, which must be added to the notice of election : — 

Notification to he added to the Notice of Election. 

Take notice that by the Parliamentary Elections (Returning Officers) 
Act, 1875, it is provided that every person having any claim against a 
Returning Officer for work, labour, materials, services, or expenses in 
respect of any contract made with him by or on behalf of the Returning 
Officer, for the purposes of an election (except for publication of account 
of election expenses), shall within fourteen days after the day on which 
the return is made of the person or persons elected at the election, trans- 
mit to the Returning Officer the detailed particulars of such claim in 
writing, and the Returning Officer shall not be liable in respect of any- 
thing which is not duly stated in such particulars. 

As to notice of the time and place of University elections, see with 
regard to the Universities of Oxford and Cambridge, the Parliamentary 
Elections Act, 1793, 33 Geo. iii. c. 64; the University of London, the 
Representation of the People Act, 1867, s. 42; the Scotch Universities, 
the Representation of the People (Scotland) Act, 1868, s. 37. 

If insufficient notice be given, the election would be void if the result 
of the election {i.e. the return of the candidate) were in fact, or might 
reasonably have been, affected by such irregularity (see Seafonl, 1785, 

3 Liid. 3; Athlone, 1843, Bar. & Arn. 120; Rye, 1848, 1 P. R. D. 113). 
But no election will be declared invalid by reason of non-compliance 
with the rules under the Ballot Act, or any mistake in the use of the 
forms, if it appears that the election was conducted in accordance with 
the principles laid down in the body of the, Act, and that such non- 
compliance or mistake did not affect the result of the election (Ballot 
Act, 1872, 35 & 36 Vict. c. 33, s. 13 ; see also Longford, 1870, 2 0':\L & 
H. 7; Woodward v. Sarsons, 1875, L. R. 10 C. P. 733; East Clare, 1892, 

4 O'M. & H. 164 ; Islington, 1901, 5 O'M. & H. 125). In the case of any 
such irregularity the burden of proving that the infraction of the Ballot 
Act did not and could not affect the result of the election would rest on 
the respondent, and it is not necessary for the petitioner to prove 
affirmatively that the result of the election was affected by the 
proved trangression of the law {Islington, 1901, 5 O'M. & H. 130, per 
Kennedy, J.). 

Date of Election.— ThQ day of the election must be fixed by the 
Returning Officer in the case of an election for a county or a district 
borough not later than the ninth day after the day on which he receives 
the writ, with an interval of not less than three clear days' between the 
day on which he gives the notice and the day of election (Ballot Act, 
1 872, Sched. I. r. 2 ; as to what are " district boroughs," see the Repre- 
sentation of the People Act, 1832, 2 & 3 Will. iv. c. 45, Sched. E. ; Ballot 
Act, 1872, Sched. I. r. 57 ; see also the Statute Law Revision (No. 2) 
Act, 1888, 51 & 52 Vict. c. 57; and the Redistribution of Seats Act, 
1885, 48 k 49 Vict. c. 23). 

In the case of an election for any borough, other than a district 
borough, the day of the election is to be not later than the fourth day 
after tlie day on which the Returning Officer receives the writ, with an 



ELECTIONS 157 

interval of not less than two clear days between the day on which he 
aives the notice and the day of election (Ballot Act, 1872, Sched. I. r. 2). 
Place of Election. — The place of election in the case of a division of a 
cuunty must be in such town situate in the county, or in a county of a 
city or town adjoining the said county, as the local authority having power 
to divide the division into polling districts (see 2^ost, under the head 
Polling Districts), or in default of any determination, the Returning 
Otticer, may from time to time determine, as being in their or his opinion 
the most convenient for the purposes of the election (Eedistribution of 
Seats Act, 1885, 48 & 49 Vict. c. 23, s. 16). The division of the county 
into polling districts and the appointment of the places of election is 
now made by the County Council (see Local Government Act, 1888, 
51 & 52 Vict. c. 41, s. 3), but not in a county borough (see ibid. s. 
34 (6)). 

In counties which are not divided, the place of election is, under the 
Ballot Act, 1872, to be a convenient room situate in the town in which 
such election would have been held if that Act had not been passed, or 
when the election would not have been held in a town, then situate in 
such town in the county as the Returning Officer may from time to time 
determine as being in his opinion most convenient for the electors {ihid^ 
Sched. I. r. 3 ; as to the earlier law, see 7 & 8 Will. iii. c. 25, s. 3 ; see 
also the Sherifis Act, 1887, 50 & 51 Vict. c. 55, s. 18). The places of 
election for the counties of Brecknockshire, Radnorshire, and Mont- 
gomeryshire were expressly appointed by 27 Hen. viii. c. 26 ; as to the 
Isle of Wight, see the Representation of the People Act, 1832, s. 16. 

The above-mentioned provisions of the Ballot Act, 1872, apply to 
borough elections as well as to county elections, but a more recent 
enactment provides that in the case of an election for a parliamentary 
borough, or any division of a parliamentary borough, the place of elec- 
tion is to be such room or rooms in the said borough as the Returning 
» nicer may from time to time determine as being in his opinion the 
most convenient for the purposes of the election (Redistribution of Seats 
Act, 1885, s. 16 (2)). 

It is expressly provided by sec. 5 of the Ballot Act, 1872, that no 
lection shall be questioned by reason of any informality relative to 
])olhng districts or polling places. 

Tiiiic of Election. — The time appointed for the election is to be such 
two hours between 10 a.m. and 3 p.m. as may be appointed by the 
Returning Officer, who must attend during such two hours and for 
one hour after (Ballot Act, 1872, Sched. I. r. 4). 

The CcinclidcUes. — As to who may be a candidate at a parliamentary 
I'lection, and as to the incapacities for being elected, and the disqualifi- 
cations for membership of the House of Commons, see Parliament ; see 
also Rogers on Elections, 18th ed., vol. ii. ch. i. For the statutory defini- 
tion of the term " candidate," the principles as to the commencement of 
candidature, and the circumstances under which a candidate may with- 
draw from candidature, see the article Candidate ; see also Election 
Expenses. 

Nomination of Candidates. — A candidate for election to serve in 
Tarliament for a county or borougli must be nominated in writing. 
The nomination must be subscribed by two registered electors of the 
'•ounty or borough as proposer and seconder, and by eight other electors 
as assenting to the nomination (see P>allot Act, 1872, s. 1). 

The Returning Officer must supply a form of nomination paper to- 



158 ELECTIONS 

any registered elector requiring the same, during such two hours as the 
Returning Officer may fix, between 10 A.M. and 2 p.m. on each day 
between the day on which notice of the election was given and the 
day of election, and during the time appointed for the election {ihid. 
Sched. I. r. 7). But any nomination paper may be used provided it is 
in the prescribed form {ibid. Sched. I. r. 7 ; for form, see ihid. Sched. II.; 
and see the article Nomination). 

The nomination papers must be delivered to the Returning Officer 
at the place of election during the time appointed for the election {ihid. 
Sched. I. r. 8). As soon as a nomination paper is delivered to him the 
Returning Officer must publish notice of the names of the nominated 
candidate, and of the proposer and seconder, by placarding them in a 
conspicuous position outside the building in which the room appointed 
for the election is situate {ihid. Sched. I. r. 11). 

At University elections the provisions of the Ballot Act, 1872, do not 
apply (see s. 31), and the candidates are still, therefore, proposed and 
seconded orally. 

For further information as to the nomination of candidates, see the 
article Nomination. 

Unopposed Election. — If, at the expiration of one hour after the time 
appointed for the election, no more candidates stand nominated than 
there are vacancies to be filled up, the Returning Officer must forth- 
with declare the nominated candidates to be elected, and return their 
names to the Clerk of the Crown in Chancery (Ballot Act, 1872, s. 1). 
As to the mode of making the return, see post, under the head Return. 

The Returning Officer must, as soon as possible, give public notice of 
the names of the candidates elected {ibid. Sched. I. r. 45) ; such notice 
may be given by advertisements, placards, handbills, or such other means 
as he thinks best calculated to affi^rd information to the electors {ihid. 
Sched. I. r. 46). 

Contested Election. — If, on the other hand, more candidates stand 
nominated than there are vacancies to be filled up, the Returning Officer 
nmst adjourn the election, and take a poll in accordance with the provi- 
sions of the Ballot Act, 1872 {ibid. s. 1). 

Dcuth of Candidate before Foil. — If one of the candidates nominated 
die before the poll has commenced, the Returning Officer must, upon 
being satisfied of the fact of such death, countermand notice of the poll, 
and all the proceedings with reference to the election must be com- 
menced afresh in all respects as if the writ had been received by the 
Returning Officer on the day on which proof was given to him of such 
death ; but no fresh nomination is necessary in the case of a candidate 
who stood nominated at the time of the countermand of the poll {ibid.). 
A matulamits would, if necessary, be granted to compel the Returning 
Officer to countermand the poll in such an event (see Westgxiott v. Stewart, 
[1898] 1 Q. B. 552). 

In the North Gahvay election, 1906, the candidate died on the night 
of the poll, and it was ascertained that he had obtained a majority of 
votes. Tlie Returning Officer having reported the circumstances to the 
Speaker, a new writ was ordered to be issued. 

The VOhL.^Notice of Po//.— Where the election is contested the 
PiCturning Officer must, as soon as practicable after adjourning the 
election, give jiuldic notice of the day on which the poll will be taken, 
of the candidates as described in their respective nomination papei^s, of 



ELECTIONS 159 

the names of the persons subscribing the nomination paper of each 
candidate, and of the order in which the names of the candidates will 
be printed in the ballot papers (Ballot Act, 1872, Sched. I. r. 9). In the 
case of a county election the Keturning Officer must also deliver to the 
postmaster of the principal post office of the town in which the place of 
election is situate a paper signed by himself, containing the names of the 
nominated candidates, and stating the day on which the poll is to be 
taken, and the postmaster must forward the information contained in 
such paper by telegraph free of charge to all the postal telegraph 
itfices in the county for which the election is to be held, and such 
information must be published forthwith at each office in the manner 
in which post office notices are usually published {ibid. Sched. I. r. 10). 

Polling Districts. — Every county is to be divided into polling districts, 
md a polling place must be assigned to each district in such manner that, 
<) far as is reasonably practicable, every elector resident in the county 
4iall have his polling place within a distance not exceeding three miles 
irom his residence. But a polling district need not in any case be con- 
stituted containing less than one hundred electors (Corrupt and Illegal 
Practices Prevention Act, 1883, s. 47 (1)). In every county the local 
authority, who have power to divide that county into polling districts, 
must from time to time divide the county into polling districts, and alter 
these districts and polling places in such manner as may be necessary 
{ibid. s. 47 (2)). This power of dividing the county into polling districts 
for the purposes of parliamentary elections and of appointing a place 
of election in each district was vested in the justices of the county in 
Quarter Sessions (see the Kegistration Act, 1885, 48 Vict. c. 15, s. 13), 
but is now transferred to the County Council (Local Government Act, 
1888, 51 & 52 Vict. c. 41, s. 3). Such power is not, however, transferred 
to the council of a "county borough," i.e. a borough which on June 1, 
1888, either had a population of not less than 50,000 or was a county 
of itself (see ibid. ss. 31 and 34 (6)). As to earlier provisions with 
regard to polling districts in counties, see the Representation of the 
People Act, 1832, 2 & 3 Will. iv. c. 45, s. 63; the Parliamentary Boun- 
laries Act, 1832, 2 & 3 Will. iv. c. 64; the Representation of the People 
Act, 1867, 30 & 31 Vict. c. 102, s. 34. 

With regard to the division of boroughs into polling districts, tlie 
Ptcpresentation of the People Act, 1867, s. 34, provides that the local 
iiithority of every borough {i.e. the town council of the borough, or in 
iises where a parliamentary borough is constituted by the combination 
■'f two or more municipal boroughs, the town council of that municipal 
lx)rough in which the nomination takes place) are, if they think con- 
venience requires it, to divide such borough into polling districts. And 
the local authority may from time to time alter any such district. A 
description of the polling districts so made or altered must be advertised 
\)y the local authority in such manner as they think fit. Under the 
I'arliamentary Electors' Registration Act, 1868, 31 & 32 Vict. c. 58, 
s. 18, the justices of the peace of the petty sessional division in which the 
borough is situate are to exercise this power in boroughs where the town 
council is not the local authority. 

The Ballot Act, 1872, s. 5, directs the local authority of every borough 
to take into consideration the division of the borough into polling districts, 
and, if they think it desirable, by order to divide the borough into polling 
districts in such a manner as they may think most convenient for taking 
the votes of the electors at a poll. 



160 ELECTIONS 

It is further enacted by the Corrupt and Illegal Practices Prevention 
Act, 1883, s. 47 (3), that the power of dividing a borough into polling 
districts, vested in a local authority by the Ptepresentation of the People 
Act, 1867, and the enactments amending the same, may be exercised by 
such local authority from time to time and as often as the authority think 
fit, and the power is to be deemed to include the power of altering any 
polling district. And the local authority must from time to time, where 
necessary for the purpose of carrying the section into effect, divide the 
borough into polling districts in such manner that every elector resident 
in the l)orough shall be enabled to poll within a distance not exceeding 
one nule from his residence, so, nevertheless, that a polling district 
need not be constituted containing less than three hundred electors 
{ibUL). 

The Eegistration Act, 1885, s. 13 (4), also requires the local autho- 
rity having power to divide any parliamentary county or parliamentary 
borough into polling districts within one month after the passing of the 
Act, to take into consideration the division of the county or borough into 
polling districts, and, if necessary, in order to make the districts confomi 
with the enactments relating to the division of counties and boroughs 
into polling districts, to divide the county or borough or any division of 
the borough anew into polling districts, and, in a county, assign pollhig 
places to such districts in such manner as to make the districts conform 
with the said enactments, measuring the distance therein mentioned 
along the nearest road, so as to meet the convenience of electors in 
recording their votes. 

As to how the expenses incurred by the local authority of a county 
or borough in dividing the county or borough into polling districts are 
to be defrayed, see the Corrupt and Illegal Practices Prevention Act, 
1883, s. 47 (5), and the Eegistration Act, 1885, s. 14 (1). 

Pollinfj Statiotis. — At every contested election for any county or 
riding, parts, or division of a county, the sheriff, under-sheriff, or 
sheriff's deputy, must, if required by or on behalf of any candidate, 
on the day fixed for the election, and if not so required may, if it 
appear to him expedient, cause to be erected a reasonable number of 
booths for taking the poll at the principal place of election, and also 
at each of the appointed polling places, and must cause to be afhxed 
on the most conspicuous part of each of the booths the names of the 
several parishes, townships, and places for which such booth is respec- 
tively allotted (Representation of the People Act, 1832, s. 64). The 
term " polling booth " now includes polling stations (see the Ballot Act, 
1872, 8. 15). 

The Ballot Act, 1872 (s. 8, and Sched. I. r. 15), requires the Return- 
ing Officer to provide at every polling place a sufficient number of 
polling stations for the accommodation of the electors entitled to vote 
at sucli polling place, and to distribute the polling stations amongst 
those electors in such manner as he thinks most convenient. 

Each polling station must be furnished with such number of com- 
partments, in which the voters can mark their votes screened from 
observation, as the Returning Officer thinks necessary, but at least 
one compartment must be provided for every hundred and fifty electors 
entitled to vote at such polling station (Ballot Act, 1872, Sched. I. r. 16). 
A separate room or separate booth may contain a separate polling 
station, or several polling stations may be constructed in the same 
room or booth {ibid. r. 17). 



ELECTIONS 161 

The Eeturning Officer must give public notice of the situation of 
the polling stations, and the description of voters entitled to vote at 
each station, and of the mode in which electors are to vote (ibid. r. 19), 
and no person, except, under some circumstances, a police constable on 
duty, is to be admitted to vote at any polling station except the one 
allotted to him (ibid. r. 18; see also the Police Disabilities Eemoval 
Act, 1887, 50 Vict. c. 9). 

With regard to boroughs, the Representation of the People Act, 
1867, s. 34, required the Returning Officer, in the case of a contested 
election, to provide at least one booth or room for taking the poll in 
each polling district. The earlier enactment, 9 Geo. iv. c. 59, regulating 
the mode of taking the poll at borough elections, was repealed by the 
Statute Law Revision Act, 1861, 24 & 25 Yict. c. 101. Under the 
Ballot Act, 1872, the same rules now regulate polling stations in 
boroughs as in counties. In a district borough there must be at least 
one polling station at each contributory place of such borough (Ballot 
Act, 1872, Sched. I. r. 15). 

At every contested election for any county or borough, unless some 
building or place belonging to the county or borough is provided for 
the purpose of taking the poll, the Returning Officer must, whenever 
it is practicable, hire a building or room instead of erecting a booth 
(Representation of the People Act, 1867, s. 37). Moreover, the 
Returning Officer at a parliamentary election is entitled to use, free 
of charge for the purpose of taking the poll, any room in a school 
receiving a grant out of moneys provided by Parliament, and any 
room the expense of maintaining which is payable out of any local 
rate, but he must make good any damage done to such room, and 
defray any expense incurred by the persons having control of it on 
account of its being used for the purpose of taking the poll (Ballot 
Act, 1872, s. 6). i^o poll at any election may, however, be taken at 
my inn, hotel, tavern, public-house, or other premises licensed for the 
>ale of beer, wine, or spirits, or in any room or other place directly 
communicating therewith, except by the written consent of all the 
candidates (Parliamentary Elections Act, 1853, 16 & 17 Vict. c. 68, 
s. 6), and no election for any city or borough may be held in any 
church, chapel, or other place of public worship (Representation of 
the People Act, 1832, s. 68). 

In the City of London the Returning Officer must take the poll 
of voters of such freemen of the city being liverymen of the several 
companies, as are entitled to vote, at the Guildhall, and is not required 
to provide any booth or compartment, but is to take one poll for the 
whole number of such liverymen at the same place (Parliamentary 
Voters Registration Act, 1843, 6 & 7 Vict. c. 18, s. 92). 

With respect to university elections, at every election for the 
Universities of Oxford and Cambridge the Vice-Chancellor has power 
to appoint any number of polling places not exceeding three in addi- 
tion to the House of Convocation or Senate House, and to direct at 
which of the polling places the members of convocation and of the 
>enate according to their colleges are to vote, and also to appoint any 
number of pro-Vice-Chancellors to receive the votes and decide upon 
hU questions in the absence of the Vice-Chancellor, and to appoint 
poll clerks to enter the votes in poll-books (Parliamentary Elections 
Act, 1853, s. 5). 

At elections for the University of London the Vice-Chancellor 
VOL. V. 11 



162 ELECTIONS 

must appoint the polling place, and also has power to appoint two or 
more pro-Vice-Chancellors (see the Kepresentation of the People Act, 
1867. 8. 44). 

As to the cost of the erection of polling booths or polling stations, 
see the Representation of the People Act, 1832, s. 71, and the Parlia- 
mentary Elections (Returning Officers) Act, 1875, 38 & 39 Vict. c. 84, 
8. 2, and Sched. I. 

Predding Officers. — The Returning Officer must appoint a presiding 
officer to preside at each polling station (Ballot Act, 1872, Sched. I. 
r. 21). The Returning Officer may, however, if he think fit, preside 
at any polling station, and in such case has the duties of presiding 
officer (see ibid. r. 47). It is the duty of the presiding officer to keep 
order at his polling station, to regulate the number of electors to be 
admitted at a time, and to exclude all other persons except the clerks, 
the agents of the candidates, and the constables on duty {ihid. r. 21). 
A candidate at the election has also the right to be present in a 
polling station during the election (see Clementson v. Mason, 1875, 
L. R. 10 C. P. 209). Any person misconducting himself in a polling 
station, or failing to obey the orders of the presiding officer, may by 
order of the presiding officer be immediately removed by a constable, 
or by any other person authorised in writing by the Returning Officer, 
and will not without the permission of the presiding officer again be 
allowed to enter the polling station during the day ; but these powers 
are not to be exercised so as to prevent any elector entitled to \'ote 
at any polling station from having an opportunity of doing so (Ballot 
Act, 1872, s. 9). 

PolliTig Clerks. — The Returning Officer has power to appoint and 
pay such officers as may be necessary for effectually conducting the 
election (see ihid. s. 8). He has, therefore, power to appoint polling 
clerks to attend at the polling stations. One clerk may be appointed 
at each polling station to which not more than five hundred voters 
are assigned, and an additional clerk for every five hundred voters or 
fraction of that number beyond the first five hundred assigned to such 
polling station (Parliamentary Elections (Returning Officers) Act, 1875, 
38 & 39 Vict. c. 84, Sched. I.). The clerks appointed to assist the 
presiding officer have power to do any act which he is required or 
authorised to do at a polling station, except ordering the arrest, 
exclusion, or ejection from the polling station of any person (Ballot 
Act, 1872, Sched. I. r. 50). 

No person can be appointed by the Returning Officer as presiding 
officer or as polling clerk, or for any other purpose of the election, who has 
been employed by any other person in or about the election {ihid. r. 49). 

As to the payment of presiding officers and polling clerks, see the 
Parliamentary Elections (Returning Officers) Act, 1875, 38 & 39 Vict. 
c. 84, Sched. I. ; and the Parliamentary Elections (Returning Officers) 
Act, 1885, 48 & 49 Vict. c. 62, s. 4. 

Polling Agents, etc. — Any candidate at a parliamentary election 
may, previous to the time fixed for taking the poll, nominate and 
appoint agents on his behalf to attend at each or any of the polling 
booths for the purpose of detecting personation; notice in writing of 
the names and addresses of such agents must be given by the candidate 
to the Returning Officer or his deputy, after which such agents may 
attend at the polling booths for which they have been appointed 
(Parliamentary Voters Registration Act, 1843, 6 «& 7 Vict. c. 18, s. 85). 



ELECTIONS 163 

Every polling agent employed for payment must now be appointed 
by the Election Agent by himself or by his sub-agent (see Corrupt and 
Illegal Practices Prevention Act, 1883, s. 27 (1)). As to the appoint- 
ment of the Election Agent and his sub-agents, see Electiox Agent ; see 
also Agency (Election). Only one polling agent in each polling station 
may be employed for payment (see Corrupt and Illegal Practices Pre- 
vention Act, s. 17, and Sched. I. Part I. (3)). 

A candidate may himself nndertake the duties which any agent of 
his, if appointed, might have undertaken, or may assist his agent in the 
performance of such duties (see Ballot Act, 1872, Sched. I. r. 51). 

Date of Poll. — The poll must take place on the day appointed by the 
Pteturning Officer, which, in the case of an election for a county or dis- 
trict borough, must not be less than two nor more than six clear days, 
and, in the case of an election for a borough, other than a district 
borough, not more than three clear days after the day fixed for the 
election {ibid. Sched. I. r. 14). 

Duration of Poll. — The poll at parliamentary elections, other than 
university elections, must commence at 8 a.m., and be kept open until 
8 P.M. of the same day and no longer (the Elections (Hours of Poll) Act, 
1845, 48 Vict. c. 10). The poll must be closed at 8 p.m., and the officials 
must then cease to supply ballot papers to applicants, but persons who 
have been supplied with ballot papers before 8 p.m. are entitled to fill 
them up and place them in the ballot-box after that hour {Islington, 
[1901] 5 O'M. & H. 129). An irregularity on the part of the Eeturning 
Officer in not opening the poll at the proper time, or closing the poll for 
a short time, will not invalidate the election unless the result of the 
election can be shown to have been thereby affected (see Drogheda, 1874, 
2 O'M. & H. 202; Worcester, 1880, 3 O'M. & H. 187; East Clare, 1892, 
4 O'M. & H. 163; Islington, 1901, 5 O'M. & H. 130; and see the Ballot 
Act, 1872 s. 13). 

The polling at elections for the Universities of Oxford and Cambridge 
is not to continue for more than five days (Parliamentary Elections Act, 
1853, s. 4). There is a similar limit in the case of elections for the 
University of London, and the polling must commence at 8 a.m. of the 
day next following the day fixed for the election, and the poll must not 
be kept open later than 4 p.m. (see Representation of the People Act, 
1867, s. 43). See also the Parliamentary Elections Act, 1785, 25 Geo. 
III. c. 84, s. 3, as to the time of polling at university elections ; and as to 
the duration of the poll at Scotch universities, see the Universities 
Election Amendment (Scotland) Act, 1881, 44 & 45 Vict. c. 40, s. 2. 

Voting at the Poll. — Since the introduction of the system of secret 
voting by the Ballot Act, 1872, in the case of a poll at an election the 
votes must be given by ballot (see Ballot Act, 1872, s. 2). 

For information as to the mode of voting by ballot, including details 
as to the form and contents of the ballot papers and counterfoils, the 
official mark which is to be stamped on each ballot paper immediately 
before being delivered to the voter, the marking of the vote on the ballot 
paper and placing it in the ballot-box by the voter, the various offences 
relating to ballot papers and ballot-boxes, and the duties of the Return- 
ing Officer or presiding officer with regard to the ballot papers and 
ballot boxes, see the article Ballot. 

The system of voting by ballot is in every detail regulated by the 
provisions of the Ballot Act, 1872, and the rules and forms contained in 
the schedules to the Act. The provisions of the Ballot Act, 1872, must 



164 ELECTIONS 

be absolutely obeyed, but the rules and forms contained in the schedules 
are merely directory, and, provided they are substantially obeyed, it is 
not essential to follow them in every detail, and non-compliance with 
the rules or mistake in the use of the forms will not invalidate au 
election if the election was conducted in accordance with the principles 
laid down in the body of the Act (see s. 13 ; see also Woodward v. 
Sarsmis, 1875, L. R. 10 C. P. 746 ; Phillips v. Goff, 1886, 17 Q. B. D. 
812; Thombury, 1886, 16 Q. B. D. 739 ; East Clare, 1892, 4 O'M. & H. 
163; Idiiigton, [1901] 5 O'M. & H. 125 ; see also the articles Ballot; 
Election Petition. 

No inquiry is allowed to be made of any voter at the time of polling 
as to his right to vote, excepting that the Pteturning Officer or his 
deputy may put to any voter, at the time of tendering his vote but not 
afterwards, questions — (1) as to the identity of the voter, and (2) as to 
w^hether he has already voted at the election. The voter may be 
required to answer these two questions, or either of them, on oath ; the 
oath may be administered by the Returning Officer, his deputy or clerk, 
or the presiding officer (see the Parliamentary Voters Registration Act, 
1843, s. 81 ; the Redistribution of Seats Act, 1885, s. 13 (4), and the 
Ballot Act, 1872, s. 10). For form of oath, and of the two questions, 
see the Parliamentary Voters Registration Act, 1843, s. 81 ; and for 
form of the second question in the case of boroughs divided into 
divisions, see the Redistribution of Seats Act, 1885, s. 13 (4) ; see also 
the article Ballot. 

The Returning Officer may not reject any vote tendered at an election 
by any person whose name is upon the register of voters in force for the 
time being except by reason of its appearing to the Returning Officer 
or his deputy, upon putting the said two questions, or either of them, 
that the person claiming to vote is not the same person whose name 
appears on the register, or that he had previously voted at the same 
election, or except by reason of such person refusing to answer the said 
questions, or either of them, or to take the said oath (Parliamentary 
Voters Registration Act, 1843, s. 82). 

As to the circumstances under which the Returning Officer has 
power to reject any vote tendered by any person whose name is on the 
register of voters, and generally as to tendered votes, see Ballot ; see 
also Scrutiny. 

As to the offence of personation at the poll, giving the offender into 
custody, prosecution by the Returning Officer, and the penalties and 
incapacities consequent thereon, see under the head Personation in the 
article on CoRiiun^ Practices. 

The Poll at University Elections. — The mode of election at common 
law was by the view, i.e. by a holding up of hands, or by the voice of the 
electors present (see j)cr Brook, C.J., Buckley v. Bice Thomas, 1554, 
Plowd., at \h 128; see also Simeon, Law of Elections, 2n(f ed., p. 154; 
Hey wood on Coitnty Elections, 2nd ed., p. 354) ; but a poll or numeration 
of the votes, man by man, had to be taken if demanded by a candidate, 
or by an elector (see Coke, Inst. iv. 48 ; Roe, Law of Electwns, 2nd ed., 
vol. i. p. 577; Simeon, Lavj of Elections, 2nd ed., p. 156; Heywood on 
CouiUy EledioTis, 2nd ed., p. 358 ; Southivark, Glanv. 8 ; B.y. Brighticcll, 
1839, 10 Ad. & E., at p. 177). But at the present time under the Ballot 
Act, 1872, a poll must in the case of every contested election be taken 
l>y ballot, and no demand is necessary. 

In the case of university elections, however, the provisions of the 



ELECTIONS 165 

Ballot Act, 1872, do not apply (see s. 31), and with regard to such elec- 
tions the old law is still in force. At university elections, therefore, if 
the number of candidates proposed and seconded is in excess of the 
number of vacancies, the Returning Officer must call for a show of 
hands, and the candidate in whose favour it is is elected, unless a poll be 
demanded, in which event the election must be adjourned in order to 
take a poll. The poll at university elections may be by means of oral 
voting or by means of voting papers. The Universities Elections Acts, 
1861 and 1868 (extended to the University of London by the Repre- 
sentation of the People Act, 1867, s. 45), enable electors at university 
elections, instead of attending to vote in person, to nominate any other 
electors of the same university to deliver for them at the poll voting 
papers containing their votes. Every such voting paper is to bear date 
subsequently to notice given by the Returning Officer of the day for 
proceeding to election, and to contain the names of the candidates 
thereby voted for, and the names of the electors authorised on behalf of 
the voter to tender such voting paper at the poll, and must be according 
to the form or to the effect prescribed in the schedule to the University 
Elections Act, 1861 (see s. 1 of that Act). 

Form of Voting Paper at University Election, 

University Election, 19 . 

I, A. B. [the Christian and surname of the elector in full, his college or 
hall, if any, and his degree or academical rank or office, if any, to be here 
inserted], do hereby declare, that I have signed no other voting paper at 
this election, and do hereby give my vote at this election for 
And I nominate . . . C. D.j 

E. F., 
G.H., 
or one of them, to deliver this voting paper at the poll. 

Witness my hand this day of , 19 . 

(Signed) A. B., of [the elector's place of residence to be 

here inserted]. 

Signed in my presence by the said A. B., who is personally known 
to me, on the above-mentioned day of , 19 , the 

name [or names] of , as the candidate \m' candidates] voted 

for having been previously filled in. 

(Signed) Z. M., of [the witness's place of residence to 

be here inserted]^ 
a justice of the peace for 

Such voting paper, the date and names being previously filled in, 
must, on any day subsequent to the notice of election, be signed by the 
voter in the presence of a justice of the peace for the county or borough 
in which the voter is then residing ; the justice of the peace must certify 
and attest the fact of the voting paper having been so signed in his 
presence by signing at the foot of it a certificate or attestation in the 
prescribed form, with his name and address in full (see ibid. s. 1, and the 
Schedule). In Jersey and Guernsey, voting papers may be signed in the 
presence of the bailiffs or any lieutenant-bailliff, jurat, or juge d'instruc- 
tion ; in Alderney, of the judge of Alderney, or any jurat ; in Sark, of 



IQQ ELECTIONS 

the seneschal or deputy-seneschal (see the Universities Election Act, 
1868, 31 & 32 Vict. c. 65, s. 3). The voting papers so signed and 
certified may be delivered to the Keturning Officer of the university or 
his deputy, at any of the appointed polling places, during the appointed 
hours of polling, by any one of the persons therein nominated in that 
behalf, who on tendering such voting paper at the poll is to read out 
the same, and the Keturning Officer must receive the voting papers as 
delivered, and cause the votes to be recorded as if the votes had been 
given by the electors attending in person, and all votes so recorded are 
to have the same validity and effect as if given by the voters in person 
(the University Elections Act, 1861, s. 2). No person, however, may 
vote by more than one voting paper at any election, and no voting paper 
containing the names of more candidates than there are burgesses to Ije 
elected at'the election is to be received or recorded (ibid.) 

No voting paper is to be received or recorded unless the person 
tendering it makes and signs at the foot or back of the paper a declara- 
tion that he believes it to be the paper by which the voter intends to 
vote pursuant to the provisions of the Universities Election Acts, 1861 
and 1868 (see s. 2 of the Act of 1861, and s. 1 of the Act of 1868). 

Farm of Dedaratim by Person Tendering University Fating Faj^er. 

I solemnly declare that I verily believe that this is the paper by 
which A. B. [the voter] intends to vote pursuant to the provisions of the 
Universities Elections Acts, 1861 and 1868. 

No voting paper is to be received or recorded if the voter signing it 
has already voted in person at the same election ; but every elector may 
vote in person notwithstanding that he has signed and transmitted a 
voting paper to another elector if his voting paper has not been already 
tendered at the poll (see University Elections Act, 1861, s. 2). 

Sec. 3 of the same Act provides that it shall be lawful for any person 
now by law or custom authorised on behalf of any candidate to object to 
votes, to inspect any voting paper tendered at the poll before the same 
shall be received or recorded, and to object to it on one or more of the 
following grounds : — 

1. That the person on whose behalf the voting paper is tendered is 
not qualified to vote : 

2. That the person tendering the voting paper is not duly qualified 
in that behalf : 

3. That the person in whose behalf the voting paper is tendered has 
already voted at that election in person or by voting paper : 

4. That the voting paper bears date anterior to notice given by the 
Returning Officer of the day for proceeding to election : ' 

5. That the voting paper is forged or falsified : 

And the Keturning Officer, his deputy or assessor, or any officer having 
by law or custom power to decide objections in respect of votes tendered 
by voters attending the poll in person, shall have power to put questions 
to the person tendering such voting paper, and to reject, receive, and 
record, or receive and record as objected to or protested against, any 
votes tendered by voting papers : Provided, that in case the objection 
oflered to any voting paper shall be that it is forged or falsified, such 
returning or otlier officer shall receive and record such voting paper, 
having previously written upon it, " objected to as forged," or " objected 



ELECTIONS 167 

to as falsified," together with the name of the person making such 
objection. 

All voting papers received and recorded at the election, as well as 
any voting papers rejected for informality, or on any other ground, must 
be filed and kept by the officer instructed with the care of the poll-books 
r other documents relating to the election {ibid. s. 4). 

As to the penalty for falsely or fraudulently signing any voting 
paper in the name of any other person, see ibid. s. 5. 

As to the Scotch Universities, see the Kepresentation of the People 
(Scotland) Act, 1868, 31 & 32 Vict. c. 48 ; and the Universities Elections 
Amendment (Scotland) Act, 1881, 44 & 45 Vict. c. 40, under sec. 2 of 
which Act electors, in the case of Scotch university elections, can only 
vote by means of voting papers and not in person. 

AdjouT7iment of Poll. — Where the taking of the poll at any election 
is interrupted or obstructed by any riot or open violence, the Returning 
Officer or his deputy may not finally close the poll, but must adjourn 
the taking of the poll at the particular polling places at which the 
interruption or obstruction happened until the following day, and if 
necessary he must further adjourn the poll until the interruption or 
oVistruction has ceased (the Parliamentary Elections Act, 1835, 5 & 6 
Will. IV. c. 36, s. 8). Where the poll is so adjourned by any deputy or 
presiding officer, he must give notice to the Returning Officer, who is 
not to finally declare the state of the poll until the poll is finally closed 
( >ee ibid.). See also the Parliamentary Elections (Polling) Act, 1853, 
16 & 17 Vict. c. 15, s. 3; Cork, 1853, 2 Pow. R. & D. 234; Colchester, 
1789, 1 Peck. 503; Roxburgh, 1838, Ealc. & Fitz. 475; Wamngtoii, 
1869, 1 O'M. & H. 43 ; Worcester, 1880, 3 O'M. & H. 184. 

Proceedings at Close of Poll. — After the close of the poll the ballot 

boxes are to be sealed up so as to prevent the introduction of additional 

I'allot papers (see Ballot Act, 1872, s. 2). The presiding officer of each 

ation, as soon as possible after the close of the poll, is, in the presence 

ot the agents of the candidates, to make up into separate packets, sealed 

with his own seal and the seals of such agents of the candidates as desire 

to affix their seals — (1) each ballot-box in use at his station unopened, 

but with the key attached ; (2) the unused and spoilt ballot papers (see 

r>ALLOT) placed together; (3) the tendered ballot papers (see Ballot); 

4) the marked copy of the register of voters, and the counterfoils of 

he ballot papers ; and (5) the tendered votes list, and the list of votes 

marked by the presiding officer, and a statement of the number of the 

voters whose votes are so marked by the presiding officer under the heads 

pliysical incapacity," " Jews," and " unable to read," and the declara- 

:<->ns of inability to read (see Ballot). These packets are to be delivered 

M the Returning Officer (Ballot Act, 1872, Sched. I. r. 29). With these 

ackets the presiding officer is to send a statement showing the number 

f ballot papers intrusted to him, and accounting for them under the 

i leads of ballot papers in the ballot-boxes, unused, spoilt, and tendered 

1 'allot papers; this statement is known as the "ballot paper account" 

( ibid. r. 30). 

It is the duty of the Returning Officer to make arrangements for 
'tunting the votes in the presence of the agents of the candidates as 
•>on as practicable after the close of the poll, and he must give notice 
■ n writing of the time and place at which he will begin to count them 
' the agents of the candidates appointed to attend at the counting of 
he votes {ibid. r. 32). 



168 ELECTIONS 

Counting the Votes. — Agents for Counting Votes. — The candidates 
may respectively appoint agents to attend the counting of the votes 
(Ballot Act, 1872, Sched. I. r. 31). The name and address of every 
agent of a candidate appointed to attend the counting of the votes nuis't 
be sent to the Returning Officer one clear day at least before the openinc: 
of the poll ; the Keturning Ofiicer may refuse to admit to the place where 
the votes are counted any agent whose name and address has not been 
so transmitted, notwithstanding that his appointment may be otherwise 
valid {iUd. r. 52). 

If any person appointed by a candidate as agent for the purposes of 
attending at the polling station, or at the counting of the votes, dies, or 
becomes incapable of acting, during the election, another agent may be 
appointed in his place by the candidate, and notice of the name and 
address of the agent so appointed must be sent to the Keturning Officer 
(ibid. r. 53). The non-attendance of any agent would not, however, 
invalidate the counting {ihid. r, 55). 

Procedure on Counting Votes. — At the time appointed the Returning 
Ofiicer must open the ballot-boxes, and ascertain the result of the poll, 
by counting the votes given to each candidate (see Ballot Act, 1872, 
8. 2). The Returning Officer, his assistants and clerks, the agents of the 
candidates, and the candidates themselves, are the only persons who 
may be present at the counting of the votes, unless the Returning Officer 
sanctions the presence of anyone else (see Clementson v. Mason, 1875, 
L. R. 10 C. P. 209; and Ballot Act, 1872, Sched. I. r. 33). The 
Returning Officer has power to appoint competent persons to assist liim 
in counting the votes, but no one employed by any other person in or 
about the election may be appointed to assist at the count (see ihid. 
rr. 48 and 49). 

Before the Returning Officer proceeds to count the votes, he must, in 
the presence of the agents of the candidates, open each ballot-box, and 
taking out the papers therein count and record the number thereof, and 
then mix together the whole of the ballot papers contained in the ballot- 
boxes. While counting and recording the number of ballot papers and 
counting the votes, the Returning Officer must keep the ballot papers 
with their faces upwards, and take all proper precautions for preventing 
anyone from seeing the numbers printed on the backs of the papers 
{ihid. r. 34; see also Ackers v. Howard (Thornhinj), 1886, 16 Q. B. D.. 
at p. 750). He must, so far as practicable, proceed continuously with 
the counting of the votes, allowing only time for refreshment, and, 
unless he and the agents otherwise agree, excluding the hours between 
7 P.M. and 9 a.m. During any adjournment of the counting, the 
Returning Officer must place the ballot papers, and other documents 
relating to the election, under his seal, and the seals of any of the 
agents who desire to affix their seals, and must otherwise take proper 
precautions for the security of the ballot papers and documents (Ballot 
Act, 1872, Sched. I. r. 35). 

Tendered ballot papers are not to be counted by the Returning 
Officer (tZ^w/. r. 27) ; as to these, see Ballot ; see also Scrutiny. 

Rejection of Ballot Pa^jers. — Any ballot paper which has not on its 
buck tlie official mark, or on which votes are given to more candidates 
than the voter is entitled to vote for, or on which anything except the 
number on the back is written or marked by which the voter can be 
identified, is void, and must not be counted (Ballot Act, 1872, s. 2). 
\Vhile counting the Votes the Returning Officer must indorse " rejected " 



ELECTIONS 169 

)ii the back of any ballot paper which he may reject as invalid, and if 
cin objection be made to his decision by any agent, he must add to the 
indorsement the words " rejection objected to " {ihicl. Sched. I. r. 36 ; see 
also Ackers v. Howard {Thornhury), 1886, 16 Q. B. D., at p. 751). The 
Keturning Officer must report to the Clerk of the Crown in Chancery 
the number of ballot papers rejected, and not counted by him, under the 
several heads of — want of official mark; voting for more candidates 
than entitled to ; writing or mark by which voter could be identified ; 
unmarked, or void for uncertainty; and must on request allow any 
atrents of the candidates, before such report is sent in, to copy it (Ballot 
v'ct, 1872, Sched. I. r. 36). 

Votes which are bad upon any other grounds than those specified 
annot be rejected by the Eeturning Officer, but will be struck off on a 
L-rutiny (see Pritcharcl v. Mayor, etc., of Bangor, 1888, 13 App. Cas. 241 ; 
^ee also Scrutiny). 

For the principles as to the validity of ballot papers, see the article 
I)ALLOT ; see also Scrutiny. For facsimiles of ballot papers upon which 
there have been express decisions, see Eogers on Elections, 18th ed., 
\ol. ii. pp. 137-143, and Parker, Election Agent and Returning Officer^ 
i!nd ed., pp. 257-272 ; see also Woodward v. Sarsons, 1875, L. R. 10 C. P. 
733 ; S. C, Pari. Pep., No. 162, of 1876 ; Cirencester, 1893, Day's EL Gas. 
■4-60. 

The decision of the Returning Officer as to any question arising in 
respect of any ballot paper is final, subject to reversal on petition 
! questioning the election or return (Ballot Act, 1872, s. 2; see also 
I Election Petition ; Scrutiny). 

Equality of Votes, Casting Vote. — Where on counting the votes an 

equality of votes is found to exist between any candidates at the 

lection, and the addition of a vote would entitle any of the candidates 

I be declared elected, the Returning Officer, if a registered elector 

f the county or borough in respect of which the election is held, may 

_ive such additional vote (Ballot Act, 1872, s. 2). But, although the 

;;eturning Officer has this casting vote, he is not in any other case 

iititled to vote at an election for which he is Returning Officer (see 

''id. ; see also the article Casting Vote). 

Miscount and Pecount. — A miscount of the ballot papers is ground 
I'lr the presentation of an election petition (see Penfrew, 1874, 2 O'M. 
.V H. 213 ; Greenock, 1892, Day's El. Cas. 21 ; Halifax, 1893, 4 O'M. & 
I f . 203 ; see also Election Petition). As to the procedure on a recount 
: the ballot papers, which has by order usually been held before the 
rial in recent petitions {e.g. Haggerston, 1896, 5 O'M. & H. 69 ; St. 
""org^s, 1896, ihid. 89; York, 1898, iUd. 118; Pembroke, 1901, ihid. 
135; Christchurch, 1901, ibid. 147; Appleby, 1906, ibid. 237), see the 
irtiele Recount. 

Verification of Bcdlot Paper Accounts. — Upon the completion of the 

•anting the Returning Officer must seal up in separate packets the 

'unted and rejected ballot papers. He must not open the sealed 

jiacket of tendered ballot papers or marked copy of the register of 

N oters and counterfoils, but is to proceed, in the presence of the agents 

t" the candidates, to verify the ballot paper account given by each 

i -residing officer, by comparing it with the number of ballot papei'S 

recorded by him, and the unused and spoilt ballot papers in his 

; possession and the tendered votes list, and he is to reseal each sealed 

\ packet after examination (Ballot Act, 1872, Sched. I. r. 37). The 



170 ELECTIONS 

Returning Officer must report to the Clerk of the Crown in Chancery 
the result of such verification, and must, on request, allow any agents 
of the candidates, before such report is sent in, to copy it {ihicl). 

Suhseqitent Custody of Ballot Papers. — Lastly, the Eeturning Officer 
must forward all the packets of ballot papers, and of counterfoils, the 
ballot paper accounts, tendered votes list, and other documents relating 
to the election, to the Clerk of the Crown in Chancery (see iUd. r. 38). 
As to the mode of forwarding such documents, as to the duties of the 
Clerk of the Crown in connection with them, and as to their inspection 
or production, see ibid. rr. 38-43 ; see also the article Ballot. 

Secrecy of the Ballot. — Every Eeturning Officer, and every officer, 
clerk, or agent, authorised to attend at a polling station, or at the 
counting of the votes, must before the opening of the poll make a 
stiitutory declaration of secrecy (Ballot Act, 1872, Sched. I. r. 54). The 
Eeturning Officer must make this declaration before a justice of the 
peace ; any other officer or an agent may make it before a justice of 
the peace or the Eeturning Officer {ibid.). For form of the statutory 
declaration of secrecy, see Ballot Act, 1872, Sched. II; see also the 
article Ballot. 

Every officer, clerk, and agent in attendance at the polling station 
must maintain and aid in maintaining the secrecy of the voting in the 
polling station, and must not communicate, except for any purpose 
authorised by law, before the poll is closed, to any person, any informa- 
tion as to the name or number on the register of voters of any elector 
who has or has not applied for a ballot paper, or voted at that polhng 
station, or as to the official mark (Ballot Act, 1872, s. 4). And there 
must be no interference with or attempt to interfere with a voter when 
marking his vote, or attempt to obtain in the polling station information 
as to the candidate for whom any voter is about to vote or has voted, 
nor may there be any communication to any person of any information 
obtained in a polling station as to the candidate for whom any voter in 
the polling station is about to vote or has voted, or as to the number on 
the back of the ballot paper given to any voter at the polling station 
(ibid.). Every officer, clerk, and agent in attendance at the counting of 
the votes, also, must maintain secrecy as to the voting, and must not 
make any attempt at the counting to ascertain the number on the back 
of any ballot paper, or communicate any information obtained at the 
counting as to the candidate for whom any vote is given in any particular 
ballot paper (ibid.). No person may directly or indirectly induce any 
voter to display his ballot paper after he has marked it, so as to make 
known to any person the name of the candidate for or against whom he 
has marked his vote (ibid). Anyone contravening these provisions as 
to the secrecy of the ballot is liable on summary conviction to imprison- 
ment for any term not exceeding six months with ov without hard 
labour (ibid.). 

Moreover, violations of the Ballot Act, and irregularities with regard 
to tlie i>oll or counting of the votes, will afford ground for an election 
petition (see Warrincftmi, 1869, O'M & H. 43 ; Drogheda, 1874, 2 O'M. 
& H. 201 ; Wwcester, 1880, 3 O'M. & H. 184; East Clare, 1892, 4 O'M. 
& H. 163; Cirencester, 1893, ibid. 194; Islington, 1901, 5 O'M. & H. 
120; see also the article Election Petition). 

Dkclauation of Election.— As soon as the counting of the votes 
has been completed, and the result of the poll consequently ascertained, 



i 



ELECTIONS 171 

tie Keturning Officer must forthwith declare to be elected the candidate 
r candidates to whom the majority of votes have been given (see the 
iallot Act, 1872, s. 2), and must as soon as possible give public notice 
f the names of the candidates elected, and of the total number of votes 
iven for each candidate whether elected or not. 

In the case of elections at the Universities of Oxford and Cambridge 
e names of the persons elected must be declared immediately or on 
he day next after the close of the poll (see the Parliamentary Elections 
'/^•t, 1785, 25 Geo. iii. c. 84, s. 1); and at an election at the University 

London the declaration of the state of the poll and proclamation of 
■lie member chosen must be made not later than two o'clock in the 
jftemoon of the day next following the close of the poll (see the 
^presentation of the People Act, 1867, s. 44). 

) Where the votes are equal and the Eeturning Officer is not a 
registered elector of the county or borough in respect of which the 
flection is held, or if, being a registered elector, he does not exercise 
^is casting vote, he must declare all the candidates having an equal 
dumber of votes to be duly elected (see post, under the head Dcncble 
Return). The declaration of the name or names of the person or persons 
Ivho have the majority of votes was expressly required by the Parlia- 
'aentary Elections Act, 1785, 25 Geo. iii. c. 84. Where, however, on a 

utiny the votes are found to be equal the election is void (see 
tijplehy, 1756, 27 Com. Journ. 443; Doivntmi, 1785, 1 Lud. 264; see 
W&o the article Scrutiny). 

The Keturn. — It is the duty of the Keturning Officer, immediately 
' result of the poll is ascertained, to return the names of the elected 
caididate or candidates to the Clerk of the Crown in Chancery (see 
eallot Act, 1872, s. 2). 

Mode of making Return. — The return of a member or members 
ted to serve in Parliament for any county or borough is now made 
means of a certificate of the names of such member or members, 
ler the hand of the Eeturning Officer, indorsed on the writ of 
ction for the county or borough {ihicl. Sched. I. r. 44.) The certificate 
aid be in the following form (see ihicl. Sched. II.) : — 

Fm-m of Certificate indoi'sed on the Writ. 

I hereby certify, that the members [or member] elected for , 

in pursuance of the within-written writ, are [or is] A. B., of , 

in the county of , and C. D., of , in the county of 

(Signed) E. F., 
High Sheriff [or Sheriff, w Mayor, or as the case may be.] 

As to the earlier law with regard to the mode of making the return 
the case of county elections, see 7 Hen. iv. c. 15; and in the case 
borough elections, see 2 Whitelocke, 403, and the Parliamentary 
(Klections Act, 1853, 16 & 17 Vict. c. 68. See also Roe, Zmv of Flections, 
pnd ed., vol. i. pp. 723-845. The Ballot Act, 1872, provides that such 
[certificate is to have effect and be dealt with in like manner as the 
return under the existing law {ibid. Sched. 1. r. 44). The Returning 
[Officer may, if he think fit, deliver the writ with such certificate 
indorsed to the postmaster of the principal post office of the place of 
Selection, or his deputy, and in that case he is to take a receipt from the 



172 ELECTIONS 

postmaster or his deputy for the same, and it is to be forwarded by th 
Hrst post free of charge under cover to the Clerk of the Crown, wit: 
the words " Election Writ and Return " indorsed thereon {ibid.). TL 
Clerk of the Crown is required to enter in a book to be kept for tha 
purpose every return which comes to his hands, and also every alteratioi 
and amendment which may be made by him or his deputy in any suci 
return (see 7 & 8 Will. ill. c. 7, s. 5). All persons are to have fn 
access to the book in which the returns are so entered, and may ta]< 
copies of any entries, upon payment of a reasonable fee {ibid.). 

The return of a member to serve in Parliament is made so soon .i 
the writ with the certificate of the Eeturning Officer indorsed therer: 
reaches the hands of the Clerk of the Crown in Chancery, but unt; 
then is not complete (see Hurdle v. Waring {Poole), 1874, L. I^. 9 C. J' 
435). 

Double Return. — The Returning Officer has now no discretion as t 
the return, but is obliged to return the candidate having the majorit 
of votes ; in the case of two or more candidates having an equality < 
votes, unless he is entitled to give, and does give, a casting vote as stat< 
above, he must make a double return, i.e. return them all as dul 
elected (see Helston, 1866, 121 Com. Journ. 486). But for wilfull 
falsely, and maliciously returning more persons than are required to 1 
chosen by the writ, a Returning Officer is liable to statutory penalti- 
(see 7 & 8 Will. iii. c. 7, s. 3 ; at common law, however, no action woul 
lie in such a case, see Barnardiston v. Soame, 1674, 2 St. Tri. 1063 ; an 
Prideaux v. Morrice, 1702, 7 Mod. 14). Where there is a double retui 
two certificates are indorsed on the writ, and both the names are enteri 
in the return books. Though both members can claim to take the 
seats, neither of them can vote until the right to the seat has bet- 
determined (see May, Parliamentary Practice, 11th ed., p. 653). Doul)!- 
returns are recognised by the Parliamentary Elections Act, 1785, 2 
Geo. III. c. 84; see also Montgomery, 1848, 103 Com. Journ. 21 .^ 
KTiareshorough, 1853, 2 Pow. R. & D. 211. See further, as to doubi' 
returns. Roe, Law of Elections, 2nd ed., pp. 796-804 ; May, Parliamcntar 
Practice, 11th ed., pp. 652-658. 

Special Return. — In some few cases, e.g. where elections have beei 
interfered with by rioting, special returns have been made by tl 
Returning Officer (see Denbighshire, 1601, D'Ewes, 627; Leicestershii 
1714, 18 Com. Journ. 21; Coventry, 1780, 38 ibid. 8; Knaresboroiui 
1805, 2 Peck. 382; see also Roe, Law of Elections, 2nd ed., pp. 784-79' 
May, Parliamentary Practice, 11th ed., 659); but an adjournment of tl: 
poll in such case is, as above stated, provided for by statute. 

Delay in nmking Return, etc. — If the Returning Officer wilfull 
delays, neglects, or refuses to return any person who ought to 1 
returned, he is liable, where it has been determined on the hearing ' 
an election petition that such person was entitled to have been retunu 
to an action at the suit of such person for double damages ; such actio] 
must be commenced within a year after the commission of the act oi 
whicli it is grounded, or within six months after the conclusion of tl 
trial of the election petition (Parliamentary Elections Act, 1868, 31 < 
32 Vict.^ 0. 125, 8. 48). Moreover, the House of Commons also lia 
jurisiliction to punish the Returning Officer in case of his wilfull 
refusing or neglecting to make a return (see May, Parliamentv ■ 
Practice, 11 th ed., p. 640). 

Amemlmnit of Return, — The return having once been made by th 



ELECTIONS 173 

eturning Officer to the Clerk of the Crown, it cannot be altered or 
tended, except by order of the House of Commons (see 10 Com. Journ. 
77 ; see also 7 & 8 Will. iii. c. 7, s. 5). If a candidate has been duly 
[acted, but not duly returned, he cannot sit in the House of Commons 
ntil the return has been amended, which would be ordered to be done 
I such a case (see Chippenham, 1625, Glanv. 59 ; Montgcrnficry, 1848, 
03 Com. Journ. 218). 

Where, in fact, there is any error in the return, e.g. a mistake in the 

lie of the member returned, in the date of the return, or in the 
1 vision of the county for which the return is made, the House of 
ommons upon being informed thereof will order the Clerk of the 
Irown to attend and amend the return (see ^iay, Parliamentary Practice^ 
'Ith ed., p. 658). 

The undue return or the undue election of a member affords ground 
jr the presentation of an election petition (see the article Election 
[etition). After the trial of an election petition the House of Commons, 
n being informed by the Speaker of the certificate and reports (if any) 
f the election judges, must give the necessary directions for confirming 
1 altering the return, or for issuing a writ for a new election, or for 
arrying the determination into execution, as circumstances may require 
see Parliamentary Elections Act, 1868, s. 13). Where, therefore, the 
lection judges on the trial of an election petition, determine that the 
'espondent was not duly elected, the House of Commons will, upon 
be return being brought before it by the Clerk of the Crown, amend 
be return by substituting the name of the candidate who was duly 
lected and ought to be returned. 

See further, as to the amendment of the return, Eoe, Law of Elections^ 
lid ed., pp. 815-821, and May, Parliamentary Practice, 11th ed., pp. 
|39, 653, 658. 

General. — The limit of space precludes the possibility of present- 
. in this article any historical account of the law relating to parlia- 
;itary elections. As to the history of the subject, in addition to such 
ices of information as the Journals of the House of Commons,, 
iisard's Parliamentary Debates, the decisions of the old Election 
iimittees as reported in the various reports of Election Cases, and 
works of Stubbs, Hallam, and May on the history of the English 
istitution, reference should be made to the authorities mentioned 



See Ballot; Candidate; Corrupt Practices; Election Agent; 
KCTioN Commissioners; Election Expenses; Election Petition; 
vxcHisE {Electoral); Illegal Practices; Nomination; Kecount; 
.istration; Keturning Officer; Scrutiny. 

[Authorities. — Carew, Historical Account of the Rights of ElectionSy 
•'5; Whitelocke on the King's Writ for Choosing Members of Parlia- 
't, 1766; Simeon, Treatise mi the Law of Elections, 2nd ed., 1795; 
vwood. Law of Borough Elections, 1797 ; Heywood, Law of County 
'tions, 2nd ed., 1812; Orme, Digest of the Election Laios, 2nd ed., 
1 2 ; Hatsell, Precedents of Proceedings in the House of Commons, 4th 
• 1818 ; Eoe, Laio of Elections, 2nd ed., 1818 ; May, Parliamentary 
'dice, 11th ed., 1906; Eogers on Elections, 18th ed., 1906, vol. ii. 
iiUamentary).] 



174 ELECTIONS 

II. MUNICIPAL AND OTHER ELECTIONS. 

Municipal Elections. 

Introductory. — The foundation of the present law relating i 
municipal elections is the Municipal Corporations Act, 1882, 45 & 4 
Vict. c. 50, which consolidated and amended the previous enactnieii 
relating to municipal corporations in England and Wales, and Part I] 
of which regulates the preparations for municipal elections and tl 
procedure at such elections. 

Meaning of Municipal Election. — A municipal election, as define 
by statute, means an election to a corporate office, i.e. the office of May. 
Alderman, Councillor, or Elective Auditor (see the Municipal Corpoi, 
tions Act, 1882, 45 & 46 Vict. c. 50, s. 7 (1)). 

The council of a borough, by means of which the municipal corpoi 
tion of the borough exercises its corporate powers, consists of the may. 
aldermen, and councillors (see Mun. Corp. Act, 1882, s. 10). iw 
auditors, called elective auditors, are also elected annually to audit tl 
accounts of the council (see ibid. s. 25). As to the qualifications an 
disqualifications for being elected to the offices of mayor, aldermei 
councillor, and elective auditor, see Rogers on Medions, 18th ed., v. 
iii. pp. 3-28; see also the articles Aldermen; Mayor; Munici?;. 
Corporation. 

Vacancies occasioning Election. — Municipal elections take pla< 
in consequence of ordinary vacancies, which occur when the varioi 
municipal officers go out of office by efflux of time in due course. Tin 
the term of office of the mayor is one year, which expires on the 9th ■ 
November in each year, but the mayor continues in office imtil li 
successor has accepted office and made and subscribed the requir. 
declaration (see the Mun. Corp. Act, 1882, s. 15 (1) and (3), and s. <i 
(1)). The term of office of an alderman is six years, and on the 9th < 
November in each year one-half of the whole number of aldermen, vi 
those who have been aldermen for the longest time without re-electioi 
go out of office, and their places must be filled by election (see ihi' 
8. 14 (5) (6) and (7), and s. 60 (1)). The term of office of a councill 
is three years, and on the 1st of November in every year one-thii 
of the whole number of councillors for the borough or ward, as the ca^ 
may be, viz., those councillors who have been longest in office withoi 
re-election, go out of office, and their places must be filled by electi. 
(see ihicL ss. 13 and 52). The term of office of an auditor is one yea 
and each auditor goes out of office on the 1st of March in every yea 
or such other day as the council, with the approval of the Loc 
Government Board, from time to time appoint (see ibid. s. 25 (4), an 
8. 62 (1)). 

Municipal elections also take place in consequence of casual vacancit 
which may occur in various ways, as to which see Kogers on Election 
18th ed., vol. iii. pp. 44-48 ; see also the article Municipal Corporatio 
On a casual vacancy in a corporate office an election must be held 1 
the same persons and in the same manner as an election to fill .' 
ordinary vacancy; and the person elected is to hold office until tl 
time wlien the person in whose place he is elected would regularly ha\| 
gone out of office, and he is then to go out of office. The election ! 



ELECTIONS 175 

such case must be held within fourteen days after notice in writing of 
the vacancy has been given to the mayor or town clerk by two burgesses 
(Mun. Corp. Act, 1882, ss. 40 (1) and 66 (1)). When the office vacant 
is that of mayor the notice of the meeting for the election must be 
signed by the town clerk {ibid. (2)). In other cases the day of election 
^U8t be fixed by the mayor {ibid. (3)). 
j 

Election of Mayor. — The mayor is elected by the council of the 
borough from among the aldermen or councillors or persons qualified 
(see Mun. Corp. Act, 1882, s. 15 (1)). The election of the mayor is to 
;be the first business transacted at the quarterly meeting of the council 
pn the 9th November every year, which is the ordinary day of election 
pf the mayor (see Mun. Corp. Act, 1882, s. 61 (1) and (2); see also E. v, 
M'Gmvcm, 1840, 11 Ad. & E. 869). An outgoing alderman may vote, 
although the person for whom he votes is an alderman (Mun. Corp. 
^ct, 1882, s. 61 (3)). In case of equality of voters the chairman, 
although not entitled to vote in the first instance, has the casting vote 
{ibid. s. 61 (4); this does not, however, prevent the chairman from 
voting in the first instance, unless he is otherwise disqualified (see Nell 
Longbottom, [1894] 1 Q. B. 767). The vote of any person who was 
.--qualified would be liable to be struck off on petition, but it is com- 
petent to the chairman to give a contingent casting vote, where, if a 
voter prove to be disqualified, an equality of votes would otherwise 
result (see Bland v. Buchanan, [1901] 2 K. B. 75). The mayor may 
.'leceive remuneration (Mun. Corp. Act, 1882, s. 15 (4)) ; but in such case 
jliaving a pecuniary interest in the election he cannot vote for himself (see 
ibid. s. 22 (3)). Excepting the above provisions, there are no statutory 
jlirections with regard to the mode of election to the office of mayor ; a 
[show of hands is frequently adopted as the means of ascertaining the votes. 

Election of Aldermen. — Aldermen are also elected by the council 
;Mun. Corp. Act, 1882, s. 14 (1)). As to the number, term of office, 
and rotation of aldermen, see Aldermen. The election of aldermen is 
the 9th ^November every year; the election is to be held at the 
quarterly meeting of the council immediately after the election of the 
tinayor, or if there is a sheriff, the appointment of the sheriff {ibid. s. 60 
l)and(2)). 

Every person entitled to vote may vote for any number of persons,' 

t exceeding the number of vacancies, by signing and personally 

iiveriiig at the meeting to the chairman a voting paper containing the 

iiies and places of abode and descriptions of the persons for whom he 

tes {ibid. s. 60 (4)). But an outgoing alderman, although mayor-elect, 

ly not vote {ibid. s. 60 (3)); see also Hounsell v. Svitill, 1887, 19 

,'. B. D. 498). In case of equality of votes, however, the chairman, 

'Ithough as an outgoing alderman or otherwise not entitled to vote 

the first instance, has a casting vote (Mun. Corp. Act, 1882, s. 60 (6) ; 

• also Blaml v. Buchanan, [1901] 2 K. B. 75). The chairman as soon 

all the voting papers has been delivered to him must openly produce 

I'l read them or cause them to be read. The persons, not exceeding 

t' number of vacancies, who have the greatest number of votes must 

declared by the chairman to be, and thereupon are, elected. The 

ting papers having been read are delivered to the town clerk to 

'^^ kept for twelve months (see Mun. Corp. Act, 1882, s. 60 (:">) 

lind (7)). 



176 ELECTIONS 

Election of Councillors. — With regard to the election of councillor- 
it is provided that there is to be one election of councillors for the wlioL 
borough, and where a borough has wards there is to be a separate electioi 
of councillors for each ward (see the Mun. Corp. Act, 1882, s. 50 (1) an. 
(2)). As to the division of a borough into wards, see ibid. s. 30 ; see ak 
Municipal Corporation. 

The councillors are elected by the burgesses of the borough who ai. 
enrolled on the burgess roll (Mun. Corp. Act, 1882, s. 11; see als' 
Burgess ; Municipal Corporation ; Municipal Council. 

The ordinary day of election of councillors is the 1st of Novembei 
every year (Mun. Corp. Act, 1882, s. 52). 

The Returning Officer. — At an election of councillors for a whol' 
borough the Keturning Officer is the mayor, and at an election for . 
ward the Eeturning Officer is an alderman assigned for that purpose b\ 
the council at the meeting of the 9th November (Mun. Corp. Act, 188i' 
s. 53). 

Where the mayor is dead, or absent, or otherwise incapable of actiii_ 
in the execution of his powers and duties as to municipal elections, tli- 
council must forthwith choose an alderman to execute those powers an. 
duties in the place of the mayor {ihid. s. 67 (1)). And in case of tli* 
illness, absence, or incapacity to act of the alderman assigned to !•. 
Keturning Officer at a ward election, the mayor may appoint to act in hi 
stead another alderman, or if the number of aldermen does not excee. 
the number of wards, a councillor, not being a councillor for that ward 
and not being enrolled in the ward roll for that ward {iUd. (2)). 

Notice of Election. — In the case of the election of a councillor thf 
town clerk must, at least nine days before the day of election, prepan 
and sign a notice thereof, and publish it by fixing it on the Town Hall 
and in the case of a ward election in some conspicuous place in tht 
ward {ibid. s. 54). 

The form of notice of election (see ihid. Sched. YIII. Part II.) is a- 
follows : — 

Foi'm of Notice of Election. 

Borough of . Election of [Councillors, oi' Elective Auditors 

* * *^ as Hie case may he'\ for the [ ward, or several wards of the 
borough. 

Take Notice. 

1. That an election of \]iere insert the number of councillors, auditai\< 

* * ^, as the case may he] for the [ ward, or several wards of the 
said borough, will be held on the day of 

2. Candidates must be nominated by writing, subscribed by t\v( 
burgesses as proposer or seconder, and by eight otjier burgesses a 
assenting to the nomination. 

3. Candidates must be duly qualified for the office to which thev 
are nominated, and the nomination paper must state the surname ant 
other names of the person nominated, with his abode and description i 
and may be in the following form, or to the like effect : — i 

(Set out Form I.) 

4. I^ach candidate must be nominated by a separate nominatioii 
paper, but the same burgesses or any of them may subscribe as man; 



ELECTIONS 



177 



nomination papers as there are vacancies to be filled for the borough 
[or ward], but no more. 

5. Every person who forges a nomination paper, or delivers any 
nomination paper knowing the same to be forged, will be guilty of a 
misdemeanor, and be liable to imprisonment for any term not exceeding 
six months, with or without hard labour. 

6. Nomination papers must be delivered by the candidate himself, 
or his proposer or seconder, at the town clerk's office before five o'clock 
in the afternoon of day the day of next. 

7. The mayor will attend at the town hall on day the 

day of , for a sufficient time between the hours of two and four 

o'clock in the afternoon, to hear and decide objections to nomination 
papers. 

8. Forms of nomination papers may be obtained at the town clerk's 
office ; and the town clerk will, at the request of any burgess, fill up a 
nomination paper. 

Dated this day of 19 . 

A. B., Town Clerk. 



Borough of 



Form I. 

Nomination Paper. 



. Election of Councillors [Elective Auditors, 
^ for ward in the said borough [or the said borough] to 

be held on the day of 19 . 

We, the undersigned, being respectively burgesses, hereby nominate 
the following person as a candidate at the said election. 



Surname. 


Other Names. 


Abode. 


Description. 











Signature. 


Number on burgess roll, with the ward 

or polling district, if any, ha^4ng 

a distinct numbering. 


A. B. 
CD. 





VOL. V. 



12 



178 ELECTIONS 

We, the undersigned, being respectively burgesses, hereby assent to 
the nomination of the above-named person as a candidate at the said 
election. 

Dated this day of 19 . 



Signature. 


Number on burgess roll, with the ward 

or polling district, if any, having 

a distinct numbering. 


E.F. 
G. H. 
I.J. 
K. L. 

M. N. 
0. P. 
Q.E. 
S. T. 


1 



The notice of election may, in the case of ward elections and of 
elections of auditors, comprise matter necessary for several v^^ards (see 
Municipal Corporations Act, 1882, s. 65). 

A municipal election must not be held in any church, chapel, or 
other place of worship {ibid. s. 69). 

Nomination of Candidates. — At an election of councillors any person 
is entitled to subscribe a nomination paper if he is enrolled in the 
burgess roll, or, in the case of a ward election, the ward roll, but not 
otherwise. No one may subscribe a nomination paper for more than 
one ward (see Mun. Corp. Act, 1882, s. 51 (1) and (2)). 

The nomination of candidates for the office of councillor must be 
conducted in accordance with the rules contained in Sched. III. Part 
11. of the Municipal Corporations Act, 1882. Every candidate for the 
office of councillor must be nominated in writing {ibid. r. 1). The 
writing must be subscribed by two burgesses of the borough, or, in the 
case of a ward election, of the ward, as proposer and seconder, and by 
eight other burgesses of the borough or ward as assenting to the nomina- 
tion {ibid. r. 2; see also Gothard v. Clarke, 1880, 5 C. P. D. 253; Moore- 
house V. Linney, 1885, 15 Q. B. D. 273; Bowden v. Besley, 1888, 21 
Q. B. D. 309 ; Gledhill v. Crowther, 1889, 23 Q. B. D. 136 ; Marion v. 
Gorrill, 1889, ibid. 139). Each candidate must be nominated by a 
separate nomination paper, but the same burgesses or any of them may 
subscribe as many nomination papers, as there are vacancies to be tilled, 
but no more (see r. 3 ; see also Mrthcote v. Fulsford, 1875, L. K. 10 C. P. 
484 ;^ Burgoyne v. Collins, 1882, 8 Q. B. D. 450). 

The surname and other names of the candidate, and his abode and 
description, must be stated on the nomination paper (see r. 5 ; see also 
McUJier v. Brown, 1876, 1 C. P. D. 596 ; Henry v. Armitage, 1883, 12 
Q. B. D. 257). For form of nomination paper, see Mun. Corp. Act, 1882, 
Sched. VIII. Part II. ; see also Marion v. Gorrill, 1889, 23 Q. B. D. 139 ; 
Miller v. Everton, 1895, 64 L. J. Q. B. 692. The nomination papers 
must be provided by the town clerk, who must supply any burgess with 
as many nomination papers as may be required {ibid. Sched. III. r. 6). 



ELECTIONS 179 

Every nomination paper so subscribed must be delivered by the 
candidate, or his proposer or seconder, at the town clerk's office seven 
days at least before the day of election, and before 5 p.m. of the last day 
for delivery of nomination papers {ibid. r. 7). 

Notice of every nomination must be sent to each candidate by the 
town clerk {ibid. r. 8). 

The validity of every objection made in writing to a nomination 
paper, by any candidate or his representative, is to be decided by the 
mayor; his decision is to be given in writing, and if disallowing an 
objection is final, but if allowing an objection is subject to reversal on 
petition questioning the election or return (see ibid. rr. 9, 13, and 14 ; 
see also Hoives v. Turner, 1876, 1 C. P. D. 671 ; Monks v. Jackson, 1876, 
iUd. 683 ; Pritchard v. Mayor, etc., of Bangor, 1888, 13 App. Cas. 241 ; 
and the article Election Petition. Though the mayor has to decide 
ubjections to the nomination papers, he has no power to decide any 
question as to the qualification of a candidate (see Pritchard v. Mayor of 
Bangor, supra ; Harford v. Lynskey, [1899] 1 Q. B. 852). But the mayor 
should reject a nomination paper which on the face of it is bad, e.g. if 
a woman be nominated {Harford v. Lynskey, snpra ; see also Hobbs v. 
Morey, [1904] 1 K. B. 74). 

The nomination of a person absent from the United Kingdom is void 
unless his written consent, given within one month before the day of 
his nomination in the presence of two witnesses, is produced at the time 
of his nomination (Mun. Corp. Act, 1882, Sched. III. r. 16 ; see also 
Boyce v. White, 1905, 92 L. T. 240). 

The town clerk must, at least four days before the day of election, 
cause the names of all persons validly nominated, with their respective 
abodes and descriptions, and the names of the persons subscribing their 
nomination papers as proposers and seconders, to be printed and fixed 
on the Town Hall, and in the case of a ward election in some conspicuous 
place in the ward {ibid. r. 15). 

As to offences in relation to nomination papers at municipal elections, 
it is provided that if any person forges, or fraudulently defaces, or 
fraudulently destroys any nomination paper, or delivers to the town 
clerk any forged nomination paper knowing it to be forged, he shall be 
guilty of a misdemeanor, and liable to imprisonment for any term not 
exceeding six months, with or without hard labour, and an attempt to 
commit any such offence is punishable in the same way (Mun. Corp. Act, 
1882, s. 74; see also P. v. Taijlor, 1895, 59 J. P. 393). 

In the event of there being no valid nominations a nmndamus to 
hold a new election may be granted {P. v. West Sussex County Council^ 
1895, 59 J. P. 308). 

Where a candidate dies after nomination, but before the poll, the 
Pweturning Officer should countermand the poll, and the election must 
recommence, though it is not necessary for the other candidates to be 
re-nominated (see Westacott v. Steivart, [1898] 1 Q. B. 552). 

Withdrawal of Candidate. — When the number of valid nominations 
of candidates for the office of councillor exceeds that of the vacancies, a 
candidate may withdraw from his candidature by notice signed by liim 
and delivered at the town clerk's office not later than 2 p.m. of the day 
next after the last day for delivery of nomination papers (Mun. Corp. 
Act, 1882, Sched. III. r. 17). Such notices of withdrawal are to take 
effect in the order in which they are delivered; but no such notice, 
however, is to have effect so as to reduce the number of candidates 



180 ELECTIONS 

ultimately standing nominated below the number of vacancies 
(ibid.). 

Any person who corruptly induces or procures any other person to 
withdraw from being a candidate at a municipal election in consideration 
of any payment or promise of payment is guilty of illegal payment ; so 
also is the person withdrawing in pursuance of such inducement or pro- 
curement (see the Municipal Elections (Corrupt and Illegal Practices) 
Act, 1884, 47 & 48 Vict. c. 70, s. 11). As to the consequences of an 
illegal payment, see Illegal Practices. 

Unopposed Election. — Where the number of valid nominations of 
candidates for the office of councillor is the same as that of the vacancies 
the persons nominated are deemed to be elected (Mun. Corp. Act, 1882, 
8. 56 (2)). If the number of valid nominations is less than that of the 
vacancies the persons nominated are deemed to be elected, and such of 
the retiring councillors for the borough or ward as were highest on the 
poll at their election, or if the poll was equal, or there was no poll, as 
are selected for that purpose by the mayor, are deemed to be re-elected 
to make up the required number {ihicl. s. 56 (3)). And in the event of 
there being no valid nomination, the retiring councillors are deemed to 
be re-elected {ibid. s. 56 (4)). 

When an election of councillors is not contested, the Keturning 
Officer must publish a list of the persons elected not later than 11 a.m. 
on the day of election (ibid. s. 57). 

Contested Election. — In the event of the number of valid nominations 
exceeding the number of the vacancies to be filled, the councillors must 
be elected from among the persons nominated {ihid. s. 56 (1)). In such 
a case a poll must be taken by ballot (Ballot Act, 1872, s. 2). 

Polling Districts. — The council may divide the borough or any 
ward into polling districts, and thereupon the overseers are, so far as 
practicable, to make out the parish burgess lists so as to divide the 
names in conformity with the polling districts (Mun. Corp. Act, 1882, 
8. 64). 

Polling Stations, etc. — It is the duty of the mayor to provide every- 
thing, including polling stations, ballot boxes, ballot papers, etc., which 
in the case of a parliamentary election is required to be provided by the 
Keturning Officer for the purpose of the poll, and he must appoint officers 
for taking the poll and counting the votes {ihid. Sched. III. Part III. 3). 
The mayor must furnish every polling station with such number of 
compartments in which voters can mark their votes screened from 
observation, and furnish each presiding officer with such number of 
ballot papers as may be necessary for effectually taking the poll at the 
election {ibid. 4). The provisions of the Ballot Act, 1872, with respect 
to the use of a room for taking a poll do not apply to municipal elections 
(Mun. Corp. Act, 1882, Sched. III. Part III. 1). 

The mayor nmst, at least four days before the day of election, give 
public notice of the situation, division, and allotment of polling places 
for taking the poll at the election, and of the description of the 
persons entitled to vote thereat, and at the several pollinj? stations 
{ibid. 2). 

It should be observed that in the application to municipal elections 
of the rules contained in Sched. I. Part I. of the Ballot Act, 1872, the 
following modification must be made, viz. — the expression •' register of 
voters " means the burgess roll of the burgesses of the borough, or in 
the case of an election for the ward of a borough, the ward list ; and 



ELECTIONS 181 

the mayor must provide true copies of such register for each polling 
station (see the Ballot Act, 1872, Sched. I. Part II. r. 64 («)) ; and the 
provisions with respect to the day of the poll do not apply to municipal 
elections {ibid. r. 64 (c)). 

Agents at Municipal Elections. — Nothing in the Ballot Act, 1872, as 
applied by the Municipal Corporations Act, 1882, is to be deemed to 
authorise the appointment of any agents of a candidate at a municipal 
election ; but if in the case of a municipal election an agent of a candidate 
is appointed, and notice in writing of the appointment is given to the 
Keturning Officer one clear day before the polling day, then the provisions 
of the Ballot Act, 1872, with respect to agents of candidates are, as far 
as regards that agent, to apply in the case of that election (Mun. Corp. 
Act, 1882, s. 58 (6)). 

The Poll. — If an election of councillors is contested, the poll is, as 
far as circumstances admit, to be conducted as the poll at a contested 
parliamentary election is by the Ballot Act, 1872, directed to be con- 
ducted (Mun. Corp. Act, 1882, s. 58 (1)). The provisions of the Ballot 
Act, 1872, relating to a poll at a parliamentary election, including the 
provisions relating to the duties of the Eeturning Officer after the close 
of the poll, apply to a poll at an election of councillors, subject, however, 
to the provisions and modifications introduced by the Municipal Corpora- 
tions Act, 1882 (see sec. 58 (1), and Sched. III. Part III. of that Act ; see 
also Sched. I. Part II. of the Ballot Act, 1872). The Ballot Act, 1872, 
however, being an annual Act, provision is also made by the Municipal 
Corporations Act, 1882, as to the enactments which are to revive in the 
event of its ceasing to be in force (see Mun. Corp. Act, 1882, s. 76, and 
Sched. III. Part IV.). 

As to the provisions of the Ballot Act, 1872, relating to the poll and 
the proceedings at the close of the poll, reference should be made to the 
article Ballot, and to the first part of this article (I. Parliamentary 
Elections) ; see also the article PtETURNiNG Officer. 

It is necessary here merely to indicate the points of difference in the 
rules regulating the poll at municipal as compared with parliamentary 
elections. 

The enactments in force as to the appointment by the candidates of 
agents to attend at the poll for the detection of personation, and for the 
apprehension of persons charged with personation at a parliamentary 
election, apply also to municipal elections (see Mun. Corp. Act, 1882, 
8. 86 ; see also, as to the effect of such enactments, the first part of 
this article (I. Parliamentary Elections), and the articles Ballot and 
Corrupt Practices). 

The hours of polling are the same at municipal as at parliamentary 
elections (see the Elections (Hours of Poll) Act, 1885, 48 Vict. c. 10); 
the poll therefore commences at 8 A.M., and must close at 8 p.m. 

But if one hour elapses during which no vote is tendered, and the 
Pieturning Officer has not received notice that any person has within 
tliat hour been prevented from coming to the poll by any riot, violence, 
or other unlawful means, the Eeturning Officer may, if he thinks fit, 
close the poll at any time before the statutory hour for closing the poll 
has arrived (see Mun. Corp. Act, s. 58 (4), and the Elections (Hours of 
Poll) Act, 1885, s. 1). 

At an election of councillors a person is entitled to demand and 
receive a voting paper, and to vote, if he is enrolled in the burgess roll, 
or in the case of a ward election, the ward roll, but not otherwise, and 



182 ELECTIONS 

no one may vote in more than one ward (see Mun. Corp. Act, 1882, 
8. 51 (1) and (2)). Every person entitled to vote may vote for any 
number of candidates not exceeding the number of vacancies {ibid. 
8. b^ (2)). 

The facilities for voting given to police constables at parliamentary 
elections by the Police Disabilities Kemoval Act, 1887, are extended to 
municipal and other elections by the Police Disabilities Eemoval Act, 
1893, 56 Vict. c. 6, s. 2. 

Questioning Voters at the Poll. — At an election of councillors the 
presiding officer must, if required by two burgesses, or by a candidate 
or his agent, put to any person offering to vote, at the time of his 
presenting himself to vote, but not afterwards, the following questions 
or either of them: — (1) Are you the person enrolled in the burgess 
[or ward] roll now in force for this borough [or ward] as follows [read 
the tahole entry froni the roll] ? (2) Have you already voted at tlie 
present election [and in case of an election for several vxtrds, in this or 
any other ward] ? The vote of a person required to answer either of 
these questions is not to be received until he has answered it. Making 
a false answer to such question is a misdemeanor. Excepting these two 
questions, no inquiry is permitted at an election as to the right of any 
person to vote (Mun. Corp. Act, 1882, s. 59). 

Counting the Votes. — It is the duty of the mayor at municipal elections 
to appoint officers for counting the votes (see Mun. Corp. Act, 1882, 
Sched. III. Part III. 3). 

The procedure at the counting of the votes is the same as at parlia- 
mentary elections, being in accordance with the provisions of the Ballot 
Act, 1872 ; for details of which, see the first part of this article, and the 
article Ballot. 

Casting Vote. — But the provisions of the Ballot Act, 1872, s. 2, with 
respect to the voting of a Eeturning Officer (see ante, p. 169), do [not 
apply in the case of a municipal election. Where, at such an election, 
an equality of votes is found to exist between any candidates, and the 
addition of a vote would entitle any of those candidates to be declared 
elected, the Pieturning Officer, whether entitled or not to vote in the 
first instance, may give such additional vote by word of mouth or 
in writing (see Mun. Corp. Act, 1882, s. 58 (5), and Sched. III. 
Part III. 1). 

Do^thle Election of Councillor. — Provision is made for the event of 
a peraon being elected councillor in more than one ward. In such 
case he must, within three days after notice of his election, choose 
by writing signed by him, and delivered to the town clerk, or in 
default of his doing so tlie mayor must, within three days after the 
time for his choice has expired, declare for which of these wards he 
is to serve, and the choice or declaration is conclusive {ibid. s. 68). 

No return with regard to municipal elections is to be' made to the 
Clerk of the Crown in Chancery as in the case of parliamentarv 
elections (Mun. Corp. Act, 1882, Sched. III. Part III. 6). 

Custody of Ballot Papers, etc., after the Poll.—A\\ ballot papers and 
other documents, which in the case of a parliamentary election are 
forwarded to the Clerk of the Crown in Chancery, must in the case 
of municipal elections be delivered to the town clerk of the municipal 
borough in which the election is held, and must be kept by him among 
the records of tlie borough, and the provisions of the Ballot Act, 1872, 
Sched. I. Part I., with respect to the inspection, production, and destruc- 



I 



ELECTIONS 183 

tion of such ballot papers and documents, and to the copies of such 
documents, are, with certain modifications, to apply respectively to the 
ballot papers and documents so in the custody of the town clerk (see 
the Ballot Act, 1872, Sched. I. Part II. (b)). 

Expenses of Municipal Election. — The expenses incurred by the 
town clerk and other municipal authorities in relation to the holding 
of municipal elections are to be defrayed out of the borough fund (see 
Mun. Corp. Act, 1882, s. 140 (1), Sched. III. Part III. 5, and Sched. V. 
Part II.). The payment of such expenses out of the borough fund 
cannot be made without an order of the council, signed by three 
members of the council, and countersigned by the town clerk (see ibid. 
ss. 140 (2) and 141 (1), and Sched. V. Part II.). Any such order may 
be removed into the King's Bench Division of the High Court by writ 
of certiorari, and may be wholly or partly disallowed or confirmed on 
motion and hearing, with or without costs, according to the judgment 
and discretion of the Court {ibid. s. 141 (2)). 

Election of Elective Auditors. — The accounts of municipal 
councils are audited by three borough auditors, one of whom, called 
the Mayor's Auditor, is appointed by the mayor, the other two are 
elected by the burgesses, and called Elective Auditors. The term of 
ofiice of each auditor is one year (Mun. Corp. Act, 1882, s. 25 (1) 
and (4)). 

The ordinary day of election of the Elective Auditors is the 1st of 
March, or such other day as the council, with the approval of the Local 
Grovernment Board, may from time to time appoint {ibid. s. 62 (1)). 

Elections of Elective Auditors must be held at the Town Hall, or 
some other convenient place appointed by the mayor {ibid. s. 62 (5)). 
An elector may not vote for more than one person to be Elective 
Auditor {ibid. s. 62 (4)). 

In all other respects the provisions with regard to the nomination 
and election of councillors for a borough not having wards apply to the 
nomination and election of Elective Auditors {ibid. s. 62 (6)). 

Acceptance of Corporate Office. — Every qualified person elected 
to a corporate office, unless legally exempted, must either accept the 
office by making and subscribing the declaration required by the 
Municipal Corporations Act, 1882, within five days after notice of 
election, or in lieu thereof is liable to pay to the council a fine of such 
amount not exceeding, in case of an alderman, councillor, or elective 
auditor, £50, and in case of a mayor, £100, as the council by by-law 
determine. If no such by-law is made, the fine, in the case of an alder- 
man, councillor, or elective auditor, is to be £25, and in the case of a 
mayor, £50. Such fine is recoverable summarily (see Mun. Corp. Act, 
1882, 8. 34 (1) (2) and (4) ; as to the persons exempted, see ibid, 
8. 34 (3)). 

The form of declaration on acceptance of corporate office, which 
must be made and subscribed before two members of the council, or 
the town clerk, before the person elected to a corporate office can act 
in such office {ibid. s. 35), is as follows (see ibid. Sched. VIII. Part. I.) : — 

Form of Declaration on Acceptance of Coiparate Office. 
I, A. B., having been elected Mayor [or Alderman, Councillor, 
Elective Auditor] for the borough of , hereby declare that I 



184 ELECTIONS 

take the said office upon myself, and will duly and faithfully fulfil 
the duties thereof according to the best of my judgment and ability 
[and in the case of the person being qualified by estate say — And I hereby 
declare that I am seised or possessed of real or personal estate, or 
both [as the case may be], to the value or amount of one thousand 
pounds [or five hundred pounds, as the case may require], over and 
above what will satisfy my just debts]. 

Kesigxation of Corporate Office. — Any person elected to a cor- 
porate office, may, however, at any time resign the office by writing 
signed by him, and delivered to the town clerk, on payment of the 
fine provided for non-acceptance of the office, in which case the council 
must forthwith declare the office vacant, and give notice to that effect 
in writing, signed by three members of the council, and countersigned 
by the town clerk, and fixed on the Town Hall, and the office thereupon 
becomes vacant (see ibid. s. 36 (1) and (2)). 

Penalty for Acting in Office if Unqualified. — Any person acting 
in a corporate office without having made the required declaration, or 
without being qualified at the time of making it, or after ceasing to be 
qualified, or after becoming disqualified, is liable for each offence to a 
fine not exceeding £50, recoverable by action (ibid. s. 41 (1)); see also 
Be Souza v. Cobden, [1891] 1 Q. B. 687). 

Mandamus to compel Election. — If a municipal election is not 
held on the appointed day, or within the appointed time, it may be 
held on the day next after that day, or the expiration of that time 
(Mun. Corp. Act, 1882, s. 70 (1)); and in the event of the election not 
then being held the municipal corporation is not to be thereby dissolved 
or disabled from electing ; but the High Court may, on motion, grant 
a mandamus for the election to be held on a day appointed by the 
Court: thereupon public notice of the election must be fixed on the 
Town Hall by such person as the Court directs, and kept so fixed for 
at least six days before the day appointed for the election ; and in all 
other respects the election is to be conducted as an ordinary election 
(see ibid., s. 70 (2) and (3); see also B. v. Pembroke, 1840, 8 Dow. Pr. 
Cas. 302; R. v. Mayor of Stratford-on-Avon, 1886, 2 T. L. R 431; B. 
V. West Sicssex County Council, 1895, 59 J. P. 808). 

Proceedings to Test Validity of Election. — As to the grounds on 
which a municipal election may be questioned, and as to the procedure 
with regard to municipal election petitions, see the article Election 
Petition ; see also Corrupt Practices ; Illegal Practices ; Kecount ; 
Scrutiny. 

An election will not be invalidated merely by non-compliance with 
the rules, or mistake in the use of the forms, contained in the Schedules 
to the Municipal Corporations Act, 1882, if it appears to the Court 
having cognisance of the question that the election was conducted in 
accordance with the principles laid down in the body of the Act (ibid. 
8. 72; see also s. 240, and Martmi v. Gorrill, 1889, 23 Q. B. D. 139). 

Where, however, it is intended to question the validity of a 
municipal election, there should be no delay in commencing proceed- 
ings, for it is expressly enacted that every municipal election not 
called in question within twelve months after the election, either by 



ELECTIONS 185 

election petition or by information in the nature of a quo vxirranto, is 
to be deemed to have been to all intents a good and valid election 
(Mun. Corp. Act, 1882, s. 73 ; on the construction of this section, see 
Dc Souza V. Cohden, [1891] 1 Q. B., at p. 689). 



Municipal Elections in the City of London. 

The regulations with regard to the conduct of municipal elections in 
the City of London depend upon certain ancient customs, charters, and 
statutes. For detailed information as to these, reference should be made 
to the Liber Alhus compiled in 1419, translation by Eiley, 1861, Part L, 
chaps, v., xii., xvi., etc. ; Norton, Commentaries on the History, Constitution, 
irnd Chartered Franchises of City of London, 3rd ed., 1869 ; Firth, Municipal 
London, 1876 ; Pulling, Laics and Customs of the City of London, 2nd ed. ; 
1 ud other authorities. 

The Municipal Elections (Corrupt and Illegal Practices) Act, 1884, 
47 & 48 Vict. c. 70, and Part. IV. of the Municipal Corporations Act, 
1882, are, subject to the necessary modifications, expressly applied to 
municipal elections in the City of London, i.e. elections to the office of 
mayor, alderman, conmion councilman, or sheriff, including the election 
nf any officer elected by the mayor, aldermen, and liverymen in common 
hall (see Municipal Elections (Corrupt and Illegal Practices) Act, 1884, 
. 35). The provisions of the two last-mentioned statutes relating to 
; ersonation, polling agents, and disclosure of votes, are also expressly 
applied to municipal elections within the City of London by the City of 
London Ballot Act, 1887, 50 Vict. c. xiii. s. 9. 

The system of voting by ballot was introduced at municipal elections 
in the City of London by the City of London Ballot Act, 1887, which 
])rovides (see s. 2) that in the case of a poll being demanded at such 
"lections by any of the candidates, or by any two or more of the electors, 
he poll must be taken by ballot, and the presiding officer at such elec- 
tions is to be the Ke turning Officer, with the powers and duties conferred 
uid imposed on a Pteturning Officer by the Ballot Act, 1872. The taking 
f the votes at such poll is, as far as circumstances admit, to be con- 
'Uicted in the same manner as the taking of the votes at a contested 
}»arliamentary election is by the Ballot Act, 1872, directed to be 
' onducted, and the other provisions of that Act relating to a poll at a 
I'firliamentary election, including the provisions relating to the duties of 
he Pteturning Officer after the close of the poll, are, as far as circum- 
lances admit, but subject to certain modifications, to apply to a poll 
t any municipal election within the City of London (see the City of 
i^ondon Ballot Act, 1887, s. 3 ; as to the modifications of the Ballot Act, 
1872, in its application to such elections, see the Schedule to the City 
of London Ballot Act, 1887). 

County Council Elections. 

County Council elections, i.e. the elections of County Aldermen, 

'•unty Councillors, and Chairmen of County Councils, are regulated by 

le provisions of the Local Government Act, 1888, 51 & 52 Vict. c. 41, 

■ > amended by the County Councils (Elections) Act, 1891, 54 & 55 Vict. 

. 68, under which the procedure at such elections is as nearly as possible 

^similated to that at municipal elections, and, in particular, the pro- 



186 ELECTIONS 

visions of the Ballot Act, 1872, are made applicable as far as circuin- 
stances admit. 

By the Local Government Act, 1888, a council is established in ever\ 
administrative county as defined by that Act, and is entrusted with th* 
management of the administrative and financial business of the county 
and consists of the chairman, aldermen, and councillors (s. 1). 

The council of a county and the members thereof are constituted and 
elected and conduct their proceedings in like manner, and are in the hke 
position in all respects, as the council of a borough divided into ward.s 
subject, nevertheless, to the provisions of the Act {ibid. s. 2). 

The aldermen are called County Aldermen, and the councillors^. 
County Councillors {ibid. s. 2 (1) and (2)). As to their qualifications for 
election, see County Council. 

The County Councillors are elected for a term of three years, and 
then retire together, and their places must be filled by a new election. 
The divisions of the county for the purpose of the election of County 
Councillors are called electoral divisions and not wards, and one County 
Councillor only is to be elected for each electoral division {ibid. s. 2 (2)). 

The ordinary day of election of County Councillors in each county i> 
to be such day between the 1st and 8th of March as the County Council 
may fix, and, if no date is so fixed, it is to be the 8th of March (see the 
County Councils (Elections) Act, 1891, s. 1 (1)). The ordinary day o: 
election of the chairman and of the aldermen is to be the 16th of March 
or such other day within ten days after the 8th of March in every third 
year as the County Council of any county may from time to time fix 
{ibid. 8. (1) (3)). But in any year which is not the year of election ot 
county councillors, the ordinary day of election of the chairman is to Ix 
such day in the months of March, April, or May as the County Counci 
shall from time to time determine (County Councils (Elections) Amend- 
ment Act, 1900, 63 & 64 Vict. c. 13, s. 2). 

For the purpose of the provisions of the Local Government Act, 1888 
with respect to County Councils, and to the chairmen, members, com 
mittees, and officers of such councils, and otherwise for the purpose o 
carrying that Act into effect, the provisions of the Municipal Corpora 
tions Act, 1882 (as amended by the Municipal Elections (Corrupt Prac 
tices) Act, 1884), relating to municipal elections, are, so far as the sanu 
are unrepealed, and are consistent with the provisions of that Act, t< 
apply as if they were therein re-enacted with the enactments amendim 
the same in such terms and with such modifications as are necessary t- 
make them applicable to the said councils and their chairmen, meml)ei> 
committees, and officers, and to the other provisions of that Act (Loca 
Government Act, 1888, s. 75). 

Certain regulations are, however, expressly made with regard t< 
County Council elections which it is impossible here to set forth in detail 
As to these, see ibid. s. 75 (1)-(21); see also the County Council 
(Elections) Act, 1891, the article County Council, and the authoritic 
mentioned at the end of this article. 

rAuisii Council and District Council Elections, etc. 

The election of the members and chairmen of Parish Councils, liura 
District Councils, Urban District Councils, and Boards of Guardians, ar 
regulated by the provisions of the Local Government Act, 1894, 56 .^ 
57 Vict. c. 73, and the rules contained in the various Election Order 



-L ELECTIONS 187 

nade from time to time by the Local Government Board in pursu- 
nce of the powers conferred by that Act. As to the constitution of 
liese bodies, see the articles District Councils; Parish Councils; 
Guardians. 

The term of office of a parish councillor is three years, and on the 
"th April in every third year following the 15th April 1901 Parish 
uncillors go out of office, and their places must be filled by newly 
elected councillors (see Parish Councillors (Tenure of Office) Act, 1899, 
52 & 63 Vict. c. 10, s. 1). As to the term of office of District Councillors 
tod Guardians, see the District Councillors and Guardians (Term of 
office) Act, 1900, 63 & 64 Vict. c. 16. 

The rules in relation to elections framed under the Local Government 
let, 1894, by the Local Government Board, are to have effect as if enacted 
tn that Act (ibid. s. 48 (1)). 

Such rules must provide, among other things — 
(i.) for every candidate being nominated in writing by two parochial 

electors, as proposer and seconder, and no more ; 
(ii.) for preventing an elector at a union, or for a district not a 
borough, from subscribing a nomination paper or voting in 
more than one parish or other area in the union or district ; 
(iii.) for preventing an elector at an election for a parish divided into 
parish wards from subscribing a nomination paper or voting 
for more than one ward ; 
(iv.) for fixing or enabling the County Council to fix the day of the 
poll, and the hours during which the poll is to be kept open, 
so, how^ever, that the poll shall always be open between the 
hours of six and eight in the evening ; 
(v.) for the polls at elections held at the same date and in the 
same area being taken together, except where this is 
impracticable ; 
(vi.) For the appointment of Keturning Officers for the elections 

(see ibid. s. 48 (2)). 
The system of voting by ballot is applied by the Local Government 
'Act, 1894, to all elections under the Act, sec. 48 (3) enacting that at every 
election regulated by rules framed under the Act the poll is to be taken 
ballot, and the Ballot Act, 1872, and the Municipal Elections (Corrupt 
1 Illegal Practices) Act, 1884, and sees. 74 and 75 and Part IV. of the 
inicipal Corporations Act, 1882, as amended by the last-mentioned 
Act (including the penal provisions of those Acts), are, subject to adapta- 
tions, alterations, and exceptions made by such rules, to apply in like 
manner as in the case of a municipal election. Provided that sec. 6 of 
the Ballot Act, 1872, is to apply in the case of such elections, and the 
Returning Officer may, in addition to using the schools and public rooms 
itherein referred to free of charge, for taking the poll, use the same, 
ffree of charge, for hearing objections to nomination papers and for 
counting votes; and sec. 37 of the Municipal Elections (Corrupt and 
Illegal Practices) Act, 1884, is to apply as if the election were an election 
■ntioned in Sched. L of that Act. 

For further information with regard to the various elections under 
the Local Government Act, 1894, reference must be made to the Act, to 
^the various Election Orders published from time to time under the Act 
♦(see Parish Councillors Election Order, 1901 ; Kural District Councillors 
'Election Order, 1898; Urban District Councillors Election Order, 1898; 
•jGuardians Election Order (London) 1898; Guardians Election Order 



188 ELECTIONS 

(outside London), 1898), and to the authorities mentioned below. The 
Local Government (Elections) Act, 1896, 59 Vict. c. 1 (continued by the 
Expiring Laws Continuance Acts), the Local Government Act, 1897, 60 
Vict. c. 1 ; the Parish Councillors (Tenure of Office) Act 1899, 62 & 6:! 
Vict. 0. 10 ; the District Councillors and Guardians (Term of Office) Act, 
1900, 63 & 64 Vict. c. 16 ; and the Members of Local Authorities Eelief 
Act, 1900, 63 & 64 Vict. c. 46, should also be noted. 

Metropolitan Borough Council Elections. 

The whole of the administrative County of London, exclusive of the 
City of London, was divided into Metropolitan boroughs by the London 
Government Act, 1899, 62 & 63 Vict. c. 14, and a council was estab- 
lished and incorporated for each of the boroughs so formed (see ibid. s. 1). 
The council of each Metropolitan borough consists of a mayor, alderman 
and councillors {ibid. s. 2 (1)). No woman is eligible for any such oitice 
{ibid.). 

The number of councillors and the number and boundaries of the 
wards, and the number of councillors assigned to each ward are fixed by 
Order in Council under the Act {ibid. s. 2 (2)). 

The number of aldermen is one-sixth of the number of councillors, 
and the total number of aldermen and councillors for each borough 
must not exceed seventy {ibid. s. 2 (3)). 

Sec. 2 (4) of the Act provides that, except as otherwise provided by 
or under the Act, the provisions of the Local Government Act, 1888. 
with respect to the Chairman of the County Council, and the county 
aldermen respectively, shall apply to the mayor and aldermen of a 
Metropolitan borough respectively, and for this purpose references in 
the Act of 1888 to the Chairman of the County Council and?to count} 
aldermen shall be construed as references to the mayor and aldermen ui 
the borough. 

Except as otherwise provided by or under the Act of 1899, the law- 
relating to the constitution, election, and proceedings of administrativt 
vestries, and to the electors and members thereof is to apply in the case 
of the borough councils under the Act of 1899 and the electors and 
councillors thereof, and sec. 46 of the Local Government Act, 1894, 
relating to disqualifications, is to apply to the offices of mayor and 
aldermen (sec. 2 (5) of the Act of 1899). 

The ordinary day of election of Metropolitan borough councillors i> 
the 1st November, or if that day is Sunday, then the following dav 
{ihid. 8. 3 (2)). 

The ordinary day of election of the mayor and aldermen is the 9tb 
November, or if that day is Sunday, then the following day {iUd 
8. 3 (3)). 

The elections of the councillors of every Metropolitan borough ai\ 
conducted according to the rules contained in the Metropolitan Borongi 
Councillors Election Order, 1903, which was made by the Local Govern 
ment Board in pursuance of the London Government Act, 1899. 

That Election Order, which should be referred to for further infonna 
tion, contains detailed regulations as to the Keturning Officer (who i 
U8ually the town clerk of the borough), notice of election, nominatioi 
of candidates, provision of nomination papers, time for sending ii 
nomination papers, dealing with nominations by the Eeturning Olficei 
statement as to the persons nominated, withdrawal of candidate, relatioi 



ELECTEIC LIGHTING 189 

bf nomination to election, prohibition of voting in more than one ward^ 
boiling districts, polling places and stations, notice of the poll, presiding 
bfficers, compartments of polling stations, ballot papers, polling agents, 
Questions to elector, counting the votes, equality of votes, publication of 
[result of election, the application and adaptation of certain provisions of 
ithe Ballot Act, 1872, of the Municipal Corporations Act, 1882, ss. 74 & 
75 and Part IV., and of the Municipal Elections (Corrupt and Illegal 
Practices) Act, 1884, expenses of the Eeturning Officer, etc. 

See also Aldekmen ; Ballot ; Corrupt Practices ; County 

V)Uncil; District Council; Election Expenses; Election Peti- 

,.)N; Guardians; Illegal Practices; Local Government ; Metro- 

itjtan Borough Councils; Municipal Corporation; Municipal 

.jUncil; Nomination; Parish Council; Eeturning Officer, etc. 

[Authorities. — Bazalgette and Humphreys, Zavj Relating to Local and 

Municipal Government, 1888 ; Macmorran, Local Government Act, 1888, 

-d ed., 1898; Bazalgette and Humphreys, Law Belating to County 

•iincils, 3rd ed., 1889 ; Glen, Lena Belating to County Government, 1890 ; 

Liishington, County Council and 3funicipal Elections Manned, 2nd ed., 

1892; V\.ydiQ, Election Manual for Parish Councillors, Urban and Rurcd 

District Councillors and Guardians outside London, 1894; Macmorran 

and Dill, The Loccd Government Act, 1894, 3rd ed., 1896; Hunt, London 

\ Local Government, 1897; Macmorran, London Government Act, 1899; 

•Hunt, London Government Act, 1899; Hunt, Metropolitan Borough 

'Councils Elections, 1900; Eogers on Elections, 18th ed., 1906, vol. iii. 

( Municipal and other Elections). 

Electoral Franchise. — See Elections ; Franchise (Elec- 

iokal). 

Electricity. — A person who, without statutory authority, 

, i.reates on his own land an electric current for his own purposes, and 

' discharges it into the earth beyond his control, is responsible for damage 

^•ansed by the current to the same extent as if he had so discharged a 

ream of water brought by him on his land; where the act is done 

under statutory authority, it is protected to the same extent as other 

nuisances under statutory authority (see Nationcd Telephone Co. v. Baker, 

[1893] 2 Ch. 186 ; Eastern and South African Telegraph Co. v. Cape 

Tou-ii Tramioays Comjxinies, [1902] A. C. 381). See also Nuisance. 

Electric Lig'hting^. — The statutory law as to electric lighting 

- contained in the Electric Lighting Acts, 1882, 45 & 46 Vict. c. 56 ; 

^88, 51 & 52 Vict. c. 12 ; the Electric Lighting Clauses Act, 1899, 62 

63 Vict. c. 19 ; and the rules under the Electric Lighting Acts, 1882- 

^00, St. E. & 0., Eev. 1904, vol. iv., sub tit. "Electric Lighting." The 

llowing is a brief summary of the conjoint effect of their provisions : — 

\ uthority to supply electricity for " public " or " private " purposes (the 

iamer term means streets under the control of the local authority, 

places of public worship, halls, theatres, etc., Act of 1882, s. 3 (3); the 

■ titer other purposes, except the transmission of telegrams, ibid. (4)) 

lay Ije conferred on local authorities, companies, or persons (the under- 

ikers, s. 2), either by licence (s. 3), or hy provisional order of the Board 

t Trade (s. 4), or by special Act. 



190 ELECTRIC LIGHTING 

Authority hj Licence. — The consent of every local authority havin 
jurisdiction within the area to be supplied must be obtained to th 
application (s. 3 (1)), which, in the case of a local authority beiii: 
applicants, is to be based on a preliminary resolution {ibid. (6)), and c 
which, in every case, public notice is to be given {ibid. (5)). Th 
duration of the licence is not to exceed seven years, but renewals ma 
be granted {ibid. (2)). The licence may contain regulations as to th 
limits and conditions of supply, revocation, etc. {ibid. (8)), or the gran 
of concurrent powers to local authority if not the undertakers {ibid. (9) 
As a rule licences are not now applied for, provisional orders being pre 
f erred. Great advance having been made in electrical knowledge aiK 
its commercial application, such matters are no longer regarded as beiii. 
in the experimental stage, and consequently more permanent arrange 
ments can be made. Where licences are granted now, as a rule the' 
do not cover more than two years. (See Shiress Will's Electric Lightiiv, 
1903 ed.) 

Authority by Provisional Order. — The consent of the local authorit 
of the district to be supplied is necessary unless the Board of Trad 
dispense with it (Act of 1888, s. 1, amending sec. 4 of Act of 1882). J 
the local authority refuse their consent the Board's power of dispensa 
tion is to be exercised, having regard to all the circumstances of th^ 
ease in which the local authority has refused its consent. A specia 
report is required from the Board if its dispensing powers be exercisei 
stating the grounds of its action {ibid.). Notice of application for pr< 
visional order is to be given to the local authority on or before 1st Jul 
in the year of such application (Act of 1882, s. 4 (1)). As to notice- 
see Electric Lighting Act Eules, rr. 7-9. No provisional order is to 1' 
of any force till confirmed by Act of Parliament (s. 4 (2) ; and see not 
on this clause in Chitty, Statutes, vol. iv., 1894 ed., s.v. "Electric Light 
ing," p. 371. ( p)), which may be opposed as in the case of private bill 
(s. 4 (3)). Any Act confirming a provisional order may, on the applica 
tion of the undertakers, be repealed, altered, or amended by a subsequeii 
provisional order, confirmed by Parliament {ibid. (4)). 

Authority by Special Act. — No provisional order can take efiei 
without confirmation by Parliament. But a special Act may h 
obtained without a preliminary provisional order. 

Provisions applicable alike to Licences and Provisional Orders. — Tli 
Board of Trade may make rules as to applications, payments, etc., to b 
laid before Parliament within three weeks — {a) after they are made i 
Parliament is sitting ; {b) after the beginning of the next session if it i 
not (s. 5). The rules now in force are dated September 1899. Thes 
rules are to be judicially noticed {ibid.) See Cognisance, Judicial. 

The undertakers are to be subject to such regulations as may be hn 
posed with regard to limits of area (as to London, see th^ London Electri' 
Lighting Areas Act, 1904), regular supply (and see sec. 19, Act of 1882^ 
safety, limit of charges (and ibid. s. 20), inspection, enforcement of sui)plN 
etc., and this provision applies in so far as safety is concerned, not only i 
regulations originally inserted in licences, etc., but to rules made fron 
time to time by the Board of Trade or any local authority within who> 
district electricity is authorised to be supplied {ibid. s. 6). The variou 
conditions enumerated in sec. 6 are now included in the Eleetii 
Lighting (Clauses) Act, 1899, and these are simply embodied. Tli 
Hoard of Trade lias also power to secure the protection of the publi 
from open electric lines or works (not laid down or erected by an; 



ELECTRIC LIGHTING 191 

person or body for the supply of electricity from one part of his or tlieir 

premises to another) by prescribing the conditions of the continuance 

land use of such lines and works (Act of 1888, s. 4 (1)), and in case of 

non-compliance may require their removal (ibid.). A penalty not 

lexceeding £20 may also be recovered summarily for such non-com- 

jpliance in any Court of summary jurisdiction (ibid. (3)). These provi- 

Isions do not exclude the powers of local authorities in respect of 

I nuisances or apprehended danger from above-ground wires, etc. (see 

I Wandsivorth Board of Works v. United Telephone Co., 1884, 13 Q. B. D. 

1 904, the consequences of the decision in which have been to some extent 

j obviated by the Electric Lighting (Clauses) Act, 1899 (s. 10 (b) of the 

j schedule), which provides that the undertakers shall not, without the 

[express consent of the Board of Trade, and, where the local authorities 

are not themselves the undertakers, of the local authority also, place any 

rlectric line above ground except within premises in the sole occupation 

I or control of the undertakers, and except so much of any service line as 

I is necessarily so placed for the purpose of supply. As to the right to 

I cut wires stretched across streets, see National Telephone Company v. 

sCimstables of St. Peter Port, [1900] A. C. 317, and Finckley Electric 

\LigUing Company v. Finchley Urban District Council, [1903] 1 Ch. 437). 

■ The expenses of local authorities incurred under the Act, etc., may be 

•lefrayed out of the local rates (Act of 1882, s. 7); as to the definition of 

which, see ibid. s. 31 and schedule. Where a local authority is a 

rural sanitary authority, such expenses are to be deemed "special 

\penses" within the meaning of the Public Health Act, 1875, s. 229 

iiid.. s. 7). The borrowing powers of local authorities in this connection 

ire dealt with in the schedule to the Act of 1882 ; where the Local 

Loans Act, 1875, applies to any district, the moneys may be borrowed 

j in the manner prescribed by that statute (Shiress Will's Electric Lightinfj 

\ Acts, pp. 98 g^ seq.). The undertakers' accounts are to be made on or 

\ before 25th March in each year to 31st of preceding December, in such 

t form, etc., as the Board of Trade prescribes (s. 9). Undertakers have 

power to do all acts and things necessary and incidental to the supply 

(Of electricity (ss. 10 and 11), but cannot divest themselves of their 

[►owers or liabilities by contract or assignment without the consent of 

ihe Board of Trade (s. 11). This eleventh section deals with two classes 

f cases — (1) Where the local authority undertakes the duty of lighting 

s town or district; and (2) where the duty is undertaken for its own 

profit by some outside person or company. The first part of the section 

•leals with cases where the local authority continues to supply the 

' lectricity though it may contract for the execution of works or buy the 

lectricity from some other person or company ; the second part deals 

ith cases of transfer by the local authority or some other person or 

)rnpany of the legal powers possessed for supplying electricity ; it is 

' the second part only that the prohibition against assignment without 

ilie consent of the Board of Trade applies (Svdbury Corporation v. 

I'Jmjnre Electric Light and Power Company, [1905] 2 Ch. 104). Collateral 

-Creements also require the consent of the Board of Trade (Lambeth 

■ '•'rrough Council v. South London Electric Supply Corporatio7i, 1906, 

- T. L. R. 78 ; 4 L. G. R. 457). The following Acts are incorporated :— 

') I^nds Clauses Acts, except as regards compulsory taking and entry 

pen land by promoters; (b) Gas Works Clauses Act, 1847, as to 

leaking up streets for laying pipes and waste or misuse of gas, etc. (Ijut 

iidertakers are not to prescribe special form of lamp or burner, Act of 



192 ELECTRIC LIGHTING 

1882, 8. 18); (c) Gas Works Clauses Act, 1871, ss. 38-42 inclusive, and \ 
45 & 46 (s. 12). Restrictions are imposed on breaking up private 
streets, railways, and tramways (s. 13). As to above-ground works and 
the restrictions thereon, see sees. 14 and 15 of the Act of 1882 ; Electric 
Lighting (Clauses) Act, 1899; London Overhead Wires Act, 1891; 
Public Health Acts Amendment Act, 1890 (adoptive); and Shiress 
Will's EledHc Lighting Acts, pp. 109 et seq. But the position of pipes 
and wires may be altered (s. 15). There are clauses for the protection 
of canals (s. 16), mines (s. 33), the privileges of the Postmaster-General 
(s. 35 ; and see Act of 1888, s. 4 (2)), compensation for damage (s. 17) to 
be determined by arbitration, conducted under the Board of Trade 
Arbitrations, etc., Act, 1874, s. 28, and for the protection of the Post- 
master-General (s. 26). Recovery of charges may be enforced by cutting 
off supply (s. 21). Electric lines, etc., belonging to undertakers placed 
in or on premises not in the possession of the undertakers for the 
purpose of supplying electricity, are not subject to distress, etc. (s. 25). 
Officers appointed by the undertakers have power to enter lands or 
premises for ascertaining quantities of electricity consumed or to remove 
fittings, etc. (s. 24). The Board of Trade has power to relieve gas 
undertakers from the obligation to supply gas within areas sufficiently 
lighted by electric light (s. 29). The malicious or fraudulent abstrac- 
tion, etc., of electricity is simple larceny, and punishable accordingly 
(s. 23). See Lakceny. Injuring electric works unlawfully and 
maliciously is felony, punishable with penal servitude for any term 
not exceeding five years, or imprisonment for any term not exceed- 
ing two years, with or without hard labour. Right of proceedings 
under the Act of 1882 or any other Act or at common law is pre- 
served, so that no person is punished twice for the same offence (s. 
22). Provision is made for the purchase of an undertaking by the 
local authority within whose jurisdiction its area or any part thereof 
is situated within six months after the expiration of a period of forty- 
two years from the date of the order or Act authorising it, or within 
six months after the expiration of every subsequent period of ten years 
(assuming that no shorter period is in either case specified in the order 
or Act) (Act of 1888, s. 2, substituted for sec. 27 of the Act of 1882). The 
Board of Trade may vary the terms of purchase by provisional order 
(Act of 1882, s. 3). The principles of computation are similar to those 
prescribed by the Tramways Act, 1870. As to sale and arbitration, see 
Metro2wlitan Electric Sup'ply Coinpany v. St. Marylebone Borough, 1903, 
1 L. G. R. 673 ; 67 J. P. 382. See also 2 L. G. R. 419. See Tramavays. 
See further the articles Post Office ; Provisional Order ; Telegraphs ; 
Telephones. 

There are several reported decisions in regard to the law of electric 
lighting that deserve incidental notice here : — 

(1.) Wliere a street is vested in a local board under sec. 149 of the 
Public Health Act, 1875, what is comprised in the term " street " is not 
merely the surface of the road, but " the area of user " therein, i.e. the 
soil beneath the actual road to such a depth, and the space over the 
surface to such a height as is reasonably required to enable the local 
authority to execute its statutory powers and perform its statutory 
duties. Undertakers under the Electric Lighting Acts are entitled to 
such an " area of user " (see Fareham Local Board and Farcham Elcctnc 
Light Co. v. Smith, 1891, W. N. 76 ; 7 T. L. R. 443 ; City of Montreal v. 
Standard Light and Power Co., [1897] A. C. 527 ; Finchlcy Electric Light- 



ELSEWHERE 193 

ing Co. v. Finchley Urban District Council, [1903] 1 Ch. 437). The right 
of a local board under the first paragraph of sec. 16 of the Public Health 
Act, 1875, to provide light by other means than gas {e.g. electricity) is 
not affected by the subsequent paragraphs, which were only inserted 
to prevent an urban authority from invading the regulated monopoly 
of any gas company in its district). See Gas. 

(2.) As to the grant of injunctions or the award of damages in cases of 
vibration caused by electric lighting, see Shelf er v. City of London Electric 
Lighting Co., and Meuxs Brewery v. 21ie Same (No. 1), [1895] 1 Ch. 287 ; 
2 Ch. 388 ; and Nuisance. 

(3.) Penalties on operators who have made default in complying with 
any of the requirements of sec. 18 (Sched.) to the Electric Lighting 
(Clauses) Act, 1899 (Chepstoiu Gas a.nd Coke Consumers' Co. v. Chepstow 
Electric Light and Poiver Co., [1905] 1 K. B. 198). 

(4.) Area of Supply — Restriction. — Where there is a prohibition of 
supplying beyond a certain " area of supply," operations must be entirely 
restricted to such area (Attorney-General v. Metropolitan Electric Supply 
Co., [1905] 1 Ch. 757). 

(5.) Faculties have been granted for the use of disused churchyards 
for electric lighting purposes. See In re St. Benet Sherehog ; In re St. 
Nicholas Aeons, [1893] P. 66?i.; In re St. Nicholas Cole Ahhey ; In re St, 
Benet Fink Churchyard, [1893] P. 58). 

[Authorities. — Shiress Will's Electric Lighting, 3rd ed., 1903 ; Bower 
and Webb, Electric Lighting, 2nd ed.] 

Eleg'it. — See Execution. 

Elementary Education.— See Education. 

Elephant-— In Harper v. Marcks, [1894] 2 Q. B., at p. 323, 
Wright, J., seemed to incline towards the opinion that an elephant 
might become a domestic animal within the Cruelty to Animals Act, 
1849, 12 & 13 Vict. c. 92, s. 29, and the Cruelty to Animals Act, 1854, 
17 & 18 Vict. c. 60, s. 3. Any doubt is now removed by the Wild 
Animals in Captivity Protection Act, 1900, 63 & 64 Vict. c. 33. It 
would seem that they fall within the provisions of the Larceny Act, 
1861, as to theft of animals ordinarily kept in a state of confinement 
(24 & 25 Vict. c. 96, s. 21 ; see Indian Penal Code, s. 429 ; Mayne, 
Indian Criminal Law, 1896, p. 191). And the fact that some elephants 
have been thoroughly tamed is not in law regarded as enough to exclude 
the elephant from the class of animals of a known mischievous or 
undomesticated character. Consequently the owner of an elephant 
keeps it at his own risk, and is liable for all injury done by it with- 
out need of proof that it was known to be mischievous (Filburn v. 
Beoples Palace and Aquarium Co., 1890, 25 Q. B. D. 258; and see 
Beven, Negligence, 2nd ed., bk. iii. c. 5 ; Mayne, Indian Criminal Law, 
1896, p. 576). 

Elsewhere. — As to meaning of condition "insured elsewhere" 
in fire policy, see Australian Agricultural Co. v. Saunders, 1875, L. K. 
10 C. P. 668; as to "the United Kingdom or elsewhere" in sec. 2, 
Sched. D, Income Tax Act, 1853, 16 & 17 Vict. c. 34, see Colquhoun v. 
Brooks, 1888, 21 Q. B. D. 52; 1889, 14 App. Cas. 493. See further, 
Stroud, Jud. Diet. 

VOL. V. 13 



194 ELY 

A will contained the following clause: — "I give and bequeath to 
A., B. and C. all my personal effects, and everything of every kind 
that I now have, or may have at the time of my decease, in my apart- 
ments at 13 Plaistow Grove, or elsewhere;" upon this it was held in In 
the Goods of Scarborotiffh, 1860, 30 L. J. Prob. 85, that the residuary 
personal estate passed under the words "or elsewhere." 

Ely, — As to the position of the Isle of Ely since 6 & 7 Will. iv. 
0. 84, see Franchise. 

Embankment. — Various legal questions have arisen in con- 
nection with embankments. As to the right of riparian owners to 
embank, see Lyon v. Fishmongers' Co., 1875, L. K. 10 Ch. 679; 1876, 1 
App. Gas. 662 (a case turning on the Thames Conservancy Act, 20 & 21 
Yict. c. cxlvii. ss. 53 and 179). As to the rateability of sewers on an 
embankment, see Metropolitan Board of Works v. Overseers of West Ham, 
1870, L. R 6 Q. B. 193. As to compensation for embankments, see Lord 
Blantyre v. BaUie, 1888, 13 App. Gas. 631. 

Emba.rg'Oy a word of Spanish origin, is the detention by a 
State of vessels within its ports. It may be a measure of public utility, 
hostility, or defence ; and sometimes, like reprisal {q.v.), retortion {q.v.), 
and pacific blockade (see Blockade), is resorted to as a mode of putting 
stress upon a weaker State. In the past it has also served as a provi- 
sional act pending the further development of unfriendly relations with 
another State. 

Calvo distinguishes between embargo and " I'arret de prince," that 
is, the temporary prohibition of one or more trading vessels, anchored 
in a port under blockade or in some other exceptional political cir- 
cumstance, to quit its or their moorings {Droit International, Paris, 
1888, s. 1826). 

It is within the powers of the British Sovereign to lay an embargo 
on even British ships ; but a proclamation to lay an embargo in time 
of peace, e.g. upon all vessels laden with wheat in a period of public 
scarcity, has been deemed contrary to law, and particularly to 22 
Gar. II. c. 13. The advisers of such a proclamation, and all persons 
acting under it, took care to be indemnified by a special Act of Par- 
liament (7 Geo. III. 7; Black. Com. ii. See Phillimore, Intern. Law, 
vol. iii. ch. iii.). 

Embargoes seem to be an attenuated survival of the more rigorous 
practice of the Middle Ages of considering war as a complete rupture 
between belligerent States, as a suspension of all respect for the person 
and property of the private citizen, and an opening up of a general 
right of capture and confiscation as between them. A more humane 
practice appears to have sprung up as early as the twelfth century, 
if we niay judge by the following article of Magna Garta (1215):— 
" And if there shall be found any such (merchants) in our land in the 
])eginning of a war, they shall be attached, without damage to their 
bodies or goods, until it may be known unto us, or our Chief Justiciary, 
how our merchants are treated who happen to be in the country which 
is at war with us ; and if ours be safe there, theirs shall be safe in our 
lands" (Art. 48). 

In our own times embargoes in anticipation of war have fallen into 
disuse. 



EMBARGO 195 

During the war between France and Sardinia against Austria, all 
vessels then in port belonging to France and Sardinia were by a decree 
of the Austrian Government (May 17, 1859) permitted to unload and 
leave the Austrian ports unmolested. 

In the Franco-German war of 1870, the commanding officers of the 
French fleets and men-of-war received orders (July 25, 1870) to grant a 
respite of thirty days to the enemy's trading vessels to leave the French 

(orts in case they should be in a French port at the outbreak of war, or 
L'liter one thereafter in ignorance of the existence of war. 

The North German Confederation, on their side, had resolved that, in 
the event of war with France, all French merchant vessels in German 
ports at the outbreak of war, or entering them in ignorance thereof after 

he war had begun, should be granted a similar respite, but of six weeks, 

aid this resolution was duly proclaimed (July 17, 1870). 

Professor von Bulmerincq infers from these instances that it is now 

leyond doubt that the ships which are at the outbreak of war in an 

■uemy's port are entitled to a respite to unload, reload, and clear out, so 
that neither ship nor cargo is any longer exposed to embargo in anticipa- 
tion of war. On the other hand, the passing in and out of merchant 
vessels from belligerent ports may rightly be forbidden, in order to 
jtrevent the spreading of knowledge of their state of defence. Thus, 
immediately after the outbreak of the Franco-German war, a decree was 
issued from Kiel Harbour to the ships of all nations, prohibiting, from a 

ertain date, entry into or departure from that port. This was in the 
interest of the defence operations and their secrecy; and, says Professor 
von Bulmerincq, "it has been considered well-founded." "And," he 
adds, " if the departure of any ships is nevertheless to be feared, the still 
more rigorous measure of an embargo on ship and freight, and detention 

if the seamen, are equally justifiable" (Holtzendorff's ITandbicch des 

Folkerrechts, vol. iv. pp. 114, 115). 

The most recent cases of coercive embargo are those by England 

I gainst ISTeapolitan ships in 1838, by France against Portuguese ships 

II 1831, and by England and France against Dutch ships in 1839. See 
Blockade. 

Contracts are not dissolved by an embargo or temporary restraint of 
their performance imposed by the Government of the country in whose 
ports the vessel may happen to be, as a measure of political caution in 
time of war, or upon the expectation of it, either in the lading port or in 
I place at which the ship may have touched in the course of her voyage 
Abbott's Laiv of Merchant Ships and Seamen, 14th ed., p. 874). This 
received judicial consecration in Hadley v. Clarke, 1799, 8 T. Ft.; 4 R E. 
')41, 259, in which the Court was of opinion that, the embargo being only 
I temporary restraint, the plaintiff had a right to recover. 

It has, however, been held that arrest, detention, or embargo of the 
hip, whether by a hostile or friendly Government, gives a primd facie 
light of abandonment in all cases where there is an apparent probability 
'hat the owner's loss of the free use and disposal of his ship may 
"^ of long, or at all events of very uncertain, continuance (Botch v. 
f-^dic, 1795, 6 T. R 413 ; 3 R E. 222). If, again, the arrest creates 
''dy a temporary obstruction of the voyage, without giving rise to 
•uy permanent loss of control over the ship, it has been lield that it 
■mnot give any right to abandon (Forstcr v. Christie, 1809, 11 East, 205; 
lU R R 470). 

As regards wages and maintenance of crew during detention of the 



196 EMBAEBASSING 

ship, see Da Costa v. Newnham, 1788, 2 T. E. 407. [See Princes, 
lIuLERS, AND Peoples.] 

[Authorities. — Hall, International Law, 5th ed., 1904; J. H. Fer- 
guson, International Law, 1884, vol. ii.; Ch. Calvo, Le Droit International, 
Paris, 5th ed., 1896 ; Hazlitt and Hoche, Law of Maritiiiu Warfare, 
London, 1854; F. Perels, Droit Maritime Internatio7ial (traduit par 
Arendt), Paris, 1884; Holtzendorff's Handhuch des Volkerr edits, Ham- 
burg, 1889, vol. iv. ; De Martens, Traitd de Droit International, Paris, 
1887, vol. iii. ; Moore, Digest of the International Law of the United 
States, Washington, 1906, vol. vii. ; Abbott's Law of Merchant Ships and 
Seamen, 14th ed., 1901 ; Arnould on Marine Insurance, London, 1901, 7th 
ed., vol. ii.] 

Embarrassing*. — This term is used in law in connection with 
pleadings. The Court or a judge may at any stage of the proceedings 
order any matter in any indorsement or pleading which may tend to em- 
barrass the fair trial of the action to be struck out or amended, and may 
in any such case order the costs of the application to be paid as between 
solicitor and client (K. S. C, Order 19, r. 27). As the practice as to 
" embarrassing pleadings " is merely a part of the general law with refer- 
ence to judicial control over Pleadings, it will be treated under that head 
and the head of Striking Out. Here it may be noted, however, that an 
" embarrassing " pleading is one of which the party setting it up is not 
entitled to make use (cp. Hengh v. Chamberlain, 1877, 25 W. K. 742). 

Ember Days. — Certain days in the ecclesiastical year, appointed 
to be observed as days of fasting or abstinence. They are observed on 
Wednesday, Friday, and Saturday next after Quadragesima Sunday, or 
the first Sunday in Lent, Whitsun Day, Holy Cross Day (September 14), 
and St. Lucy's Day (December 13). The weeks in which these days 
fall are called Ember weeks; and Canon 31 (of 1603) appoints the 
Sundays next after Ember weeks for the ordination of priests and 
deacons, although bishops may, " on urgent occasion " {Preface to Ordinal), 
ordain on any Sunday or holiday. [See Phillimore, Eccl. Law, 2nd ed., 
i. pp. 92, 807.] 

Embezzlement. — (0. Fr. emhesiler, hesillier, to maltreat, 
destroy). — This term when first used in English law meant making 
away with goods, money, records, or documents of title (5 Hen. iv. c. 14 ; 
1 Hen. viii. c. 8). 

It was often coupled with " purloining," but had a somewhat wider 
sense than that in which it is now most usually understood, and in- 
cluded all cases of fraudulent misappropriation of personal property 
with which the offender had been entrusted (Murray, LJng. Diet. s.v. ; 
Bouvier, Law Lex. s.v.) ; or, in other words, all fraudulent breaches of 
trust as to personalty where the trust was coupled with possession. At 
common law no breach of trust as to property, however fraudulent, 
seems to liave been criminal (1 Pollock and Maitland, Hist. Eng. Law, 
497n.); and the common -law definition of larceny which involved 
trespass, taking and carrying away, was regarded as not applying ta 
bailees, nor to servants who had possession of their master's goods. 
This is expressed in the old books by the proposition, " bailment or 
livery excludes larceny" {Mirrm^ of Justices, 7 Seld. Soc. Pub. 25); and 
by modern scientific lawyers, thus: "a mere wrong to a right to posses- 



EMBEZZLEMENT 197 

sion was not at common law enough to found proceedings for trespass or 
theft, unless this was forcible, and immediate taking from the actual 
possession of some person holding as his delegate, representative, or 
agent " (Pollock and Wright on Possession, 199; 1 Pollock and Mait- 
land, Hist. Eng. Law, p. 497). 

This being so, difficulties arose where servants and agents mis- 
appropriated property of their principals or employers of which they 
had lawfully obtained possession. These difficulties and their con- 
sequences are thus summarised by Sir F. Pollock and the late Mr. 
Justice Wright in Possession in the Common Law, pp. 130, 158 : " If the 
lUenor (of property) hands it to a servant of the alienee, a difficulty 
occurs which is the origin of the separate crime of embezzlement. In 
such a case the alienor has parted with the property, the right to 
possession, and also the possession, because he has parted finally with 
the control of the thing, and has no control over the alienee's servant. 
In whom, then, is the possession ? It was held not to be in the alienee, 
for he has not yet received the thing, and delivery to his servant for 
him was not held to vest the possession in him against the servant 
( though it would be enough to entitle the master to sue or prosecute a 
-tranger for trespass to the servant's possession), and, as the possession 
iiust be in some one, it must be in the servant until he does some act 
mounting to a submission, attornment, or delivery to the master, 
^ince he was thus in possession acquired without trespass, it followed 
that misappropriation by him during such possession was not theft, 
md the statutory felony of embezzlement was created to meet this 
ase." 

For about three centuries English lawyers have been struggling 
with the consequences of this theory, and Parliament has crammed the 
statute-book with sporadic attempts to deal with these forms of mis- 
appropriation — all amply covered by a single clause in the German 
code. 

The first attempt to remove this anomaly was in 1529 (27 Hen. viii. 
c. 27), which made it felony for servants to embezzle property of their 
masters intrusted to their care, to the value of over 40s. In 1690, by 
•5 & 4 Will. & Mary, c. 9, s. 5, lodgers who took with intent {inter alia) 
to embezzle furniture, etc., let to them, were declared guilty of larceny 
(Hawk., P. C, bk. i. c. 42, ss. 1, 2). This offence is still felony (24 & 25 
Vict. c. 96, s. 74) ; but the word " embezzle " no longer occurs in its 
definition. 

Until the end of the eighteenth century "embezzlement" was 
reated as applicable to all misappropriations by persons employed as 
•^rvants (Pollock and Wright, I.e. p. 191), in respect to property in- 
trusted to them by their employers. And the statutes above mentioned 
'lo not appear to have dealt with the case of property handed to a 
^Tvant for his master by a third person {B. v. Bazeley, 1799, 2 Leach, 
■^•'5). In consequence of this case was passed the Act 39 Geo. ill. c. 85, 
which was repealed and re-enacted in 1827 (7 & 8 Geo. iv. cc. 27, 
-8, s. 47), and is now embodied with modifications in the Larceny Act, 
1861, 24 & 25 Vict. c. 96. An enormous mass of decisions on the 
•'pealed enactments is collected in Ptussell on Crimes, 6th ed., vol. ii. pp. 
^33-875. 

Sec. 66 of the Act of 1861 provides that " whosoever being a clerk 
'1' servant, or being employed for the purpose of a clerk or servant, shall 
laudulently embezzle any chattel, money, or valuable security delivered 



198 EMBEZZLEMENT 

to or taken into possession by him for or in the name or on account of 
liis master or employer, or any part thereof (or the proceeds thereof), 
shall be deemed to have feloniously stolen the same from his master or 
employer, although the chattel, etc., was not received into the possession 
of the master or employer otherwise than by the actual possession of 
the clerk or servant." By sec. 68 a similar provision mutatis mutandis 
is made for embezzlement by persons in the public service of the Crown, 
or by constables of any county, borough, or district police force who 
virtutc officii are intrusted with the receipt, management, custody, or 
control of goods, money, or valuable securities. A County Court 
bailiff appears not to be in the public service, but to be a servant of 
the high bailiff {B. v. Parsons, 1888, 16 Cox C. C. 498, 51 & 52 Viet. 
c. 43, s. 33). 

These offences are punishable on conviction by penal servitude from 
three to fourteen years, or by imprisonment (with or without hard 
labour) for not over two years (24 & 25 Vict. c. 96, ss. 68, 70 ; 54 & 55 
Vict. c. 69, s. 1). In the case of a second or subsequent conviction the 
offender may be subjected to police supervision. 

Embezzlement by officers or servants of the banks of England and 
Ireland is a felony punishable by penal servitude for life, or not less 
than three years, or by imprisonment, ut supra (s. 73). In this case the 
words " secrete, embezzle, or run away with " are used, and the offence 
seems to differ from that created by sees. 68, 70, in that it is immaterial 
whether the property dealt with belonged to the bank or not, if it was 
lodged with the bank or the officer ; and that the offence is not confined 
to interception of funds, etc., handed to the officer on behalf of the 
bank. 

Besides the provisions of the Larceny Act, 1861, as to embezzle- 
ment by public servants, there have been a good many statutes passed 
from time to time with respect to public property, beginning with 
31 Eliz. c. 4 ; 22 Car. ii. c. 5, as to military stores ; and 22 Geo. ii. c. 33, 
8. 24, as to naval stores. 

Army. — It is {a) an offence punishable under military law with 
penal servitude where a person, subject to military law, and charged 
with or concerned in the care or distribution of any public or 
regimental money or goods, fraudulently misapplies or embezzles it 
or them, or connives at the commission of the offence by another ; ih) 
an offence punishable under military law with imprisonment where a 
soldier embezzles or receives with knowledge of embezzlement any 
money or goods the property of a comrade or officer, or belonging to a 
regimental mess or band, or to any regimental institution, or any pubhe 
money or goods (44 & 45 Vict. c. 58, ss. 17, 18, 56). 

Navy. — In the navy wasting or embezzling stores is punishable by 
a court-martial (29 & 30 Vict. c. 109. s. 33). 

There are also special provisions for punishing the embezzlement oi 
the property of Chelsea and Greenwich Hospitals (7 Geo. iv. c. 16 ; 28 
& 29 Vict. c. 89, 8. 45 ; 38 & 39 Vict. c. 25, s. 17). 

These enactments are alternative to the remedies given by the 
ordinary law. 

Puhlic Stores.— See Public Stores. 

Post Office. — Persons employed under the post office who embezzle 
or secrete letters are guilty of felony, and punishable by penal servitude 
for life, or not less than three years if the letter contained a chattel,! 
money, or a valuable security, and by penal servitude from three to| 



EMBEZZLEMENT 199 

seven years in other cases (7 Will. iv. & 1 Vict. c. 36, s. 26 ; and see 
Post Office). 

Customs and Excise. — Embezzlement by customs officers is dealt with, 
not only by the Larceny Act, 1861, but also by sees. 29 and 85 of the 
Customs Consolidation Act, 1876, 39 & 40 Vict. c. 86 ; see Customs ; and 
embezzlement by excise officers by 7 & 8 G-eo. iv. c. 53, s. 45 (see Excise). 

Merchant Shijjping. — Seamen lawfully engaged, and apprentices in 
the merchant shipping, are guilty of an offence against discipline, and 
liable on summary conviction to imprisonment for not over twelve 
weeks, and forfeiture out of wages if they embezzle stores or cargo 
(57 & 58 Vict. c. 68, ss. 225, 680). 

Poor Zaiv. — Embezzlement of workhouse property is specially 
punished by 55 Geo. in. c. 137. See Poor Law. 

Pnhlic Records. — Embezzling or making away with public records 
<eems to have been a misdemeanor at common law ; but is now dealt 
with as a form of larceny or malicious damage according to the modus 
operandi facinoris, and there is a precedent for an indictment of a sur- 
veyor of highways for embezzling or misappropriating road materials 
(Russell on Crimes, 6th ed., vol. ii. p. 366). 

Joint Stock Companies. — With respect to joint-stock banking com- 
panies, provision was made (by 7 Geo. iv. c. 46) for prosecuting 
embezzlement by clerks and officers, and (1 & 2 Vict. c. 96 ; 3 & 4 Vict, 
c. Ill; 5 & 6 Vict. c. 85, s. 1) by shareholders. Most of such banks 
,ire now incorporated under the Companies Acts or under Private Acts. 
And so far as concerns directors and members, and officials who cannot 
be described as clerks or servants, misappropriation of corporate 
property may be dealt with as a misdemeanor under sec. 81 of the 
Larceny Act, 1861, or under the Larceny Act, 1901. 

Joint-Owners. — Until 1868 co-owners of property could not be in- 
dieted for misappropriating it, but by the Larceny Act, 1868, 31 & 32 
Vict. c. 112, members of a co-partnership for purposes of profit (B. v. 
Robson, 1885, 16 Q. B. D. 137), and joint beneficial owners of money, 
goods, effects, bills, notes, securities, or other property, who steal or 
embezzle such property, are liable to be dealt with as if they had not 
been members of the partnership or beneficial owners. This Act, does 
not define what is meant by embezzling, nor how the copartner or joint 
beneficial owner is put into the position of clerk or servant. 

It is immaterial whether the constitution of the society or partner- 
ship is in accordance with law if its purpose is not criminal, the illegality 
in such cases not divesting the ownership of the associated persons {K 
V. Tankard, [1894] 1 Q. B. 538). 

There are also special enactments dealing with the fraudulent mis- 
appropriation of the funds or property of a municipal borough (39 & 40 
Vict. c. 20, s. 3; 45 & 46 Vict. c. 50, s. 117), friendly societies (59 & 60 
Vict. c. 25, s. 87 (3)), industrial societies (56 & 57 Vict. c. 39, s. 64), and 
trade unions (34 & 35 Vict. c. 31, s. 12; 39 & 40 Vict. c. 22, s. 5). 

Cognate Offences. — A number of offences are indexed and treated as 
<'mbezzlement in the official index to the statutes and in text-books {e.g. 
Uussell on Crimes, and Arch bold, Cr. PL), although the term " embezzle " 
is avoided by the legislature in their definition. They comprise the 
following misdemeanors, all punishable by penal servitude from three 
to seven years, or by imprisonment with or without hard labour for 
not more than two years, and (or) by fine and recognisances, and none 
triable by a Court of Quarter Sessions (24 & 25 Vict. c. 96, ss. 77-87 ; 



200 EMBEZZLEMENT 

54 & 55 Vict. c. 69, s. 1). The Larceny Act, 1901, 1 Edw. vii. c. 10, 
which creates offences {a) and (h), was passed in consequence of the 
defects found in sees. 75, 76 of the Larceny Act, 1861, which are forcibly 
stated in Re Bellencontre, [1891] 2 Q. B. 122. The Act of 1901 repeals 
these sections and supersedes the numerous decisions thereon. 

(a) Fraudulent conversion by any person to his own use or benefit, 
or to the use or benefit of any third person, of the whole or part or any 
proceeds of any property entrusted to him, either solely or jointly with 
another, in order that he may retain in safe custody, or apply, pay, or 
deliver for any purpose or to any person the said property, or any part 
thereof, or any proceeds thereof (Larceny Act, 1901, 1 Edw. vii. c. 10, 
s. 1 (1) (a). See B. v. Rotine, 1904, 68 J. P. 143 ; R v. Lord, 1905, 69 
J. P. 467; R V. South, 1907, 71 J. P. 191). 

(b) Fraudulent conversion by any person to his own use or benefit, 
or to the use or benefit of any third person, of the whole or any part 
or any proceeds of any property received by him solely or jointly with 
any other person, for or on account of any other person (1 Edw. vii. c. 

10, 8. 1 (1) m 

The offences (a) and (b) cannot be committed by trustees in an 
express trust created by deed or will in respect of any act done by 
the trustee in relation to the property comprised in or afifected by 
the trust. As to these, see (e), infra. Nor can they be committed 
by mortgagees of realty or personalty in relation to property comprised 
in or affected by the mortgage (1 Edw. vii. c. 10, s. 1 (2)). 

(c) Fraudulent misappropriation of property by any person entrusted 
solely or jointly with another with a power of attorney to sell or transfer 
such property (24 & 25 Vict. c. 96, s. 77). 

(d) Misappropriation of goods, or the documents representing them, 
by factors (s. 79). 

(e) Fraudulent misappropriation of trust property by trustees hold- 
ing it under a written instrument. This offence may be prosecuted only 
by leave of the Attorney-General, and if it follows after civil proceedings 
against the accused may not be instituted without the sanction of the 
Civil Court (s. 80). 

(/) Fraudulent misappropriation by a director, member, or pubUe 
officer of a body corporate or public company of any property of the 
corporation or company (s. 81); and see Accounts, Falsification of. 

Proceedings for these offences are no bar to civil remedies for the 
wrong sustained (s. 86). Questions tending to incriminate of the offences 
put in the course of civil proceedings or in bankruptcy must be answered. 
If the answers were given on a compulsory examination in bankruptcy 
or insolvency, they cannot be put in evidence on a criminal prosecution 
(53 & 54 Vict. c. 70, s. 27; R. v. Urdheim, 1896, 2 Q. B. 260). This 
prohibition does not apply to a statement of affairs in bankruptcy (R v. 
Pike, [1902] 1 K. B. 532), and if given in other civil cases they are the 
first disclosure of the ofi'ence, no criminal proceeding can be taken (24 
& 25 Vict. c. 96, s. 85). 

Procedure and THaL— The offence of embezzlement by a clerk or 
servant may be tried where the property was received or where it 
was appropriated, or where the accused denied its receipt, or furnished 
a false or fraudulent account of its receipt (24 & 25 Vict. c. 96, s. 70; 
Ji. V. Pogers, 1877, 3 Q. B. 1). 28). As to abettors, accessories, and 
attempts to commit the crime, and receivers of embezzled property, 
see AiJETTOii; Acckssoky; Attempt; Keceiving. 



EMBEZZLEMENT 201 

An indictment may include three distinct counts for embezzling 
distinct sums from the King or the same master or employer within 
six months from the first to the last (24 & 25 Vict. c. 96, s. 71), 
and evidence on each charge is admissible on the other on the ques- 
ion whether the failure to pay over was accidental or dishonest 
i,E. V. Stephens, 1888, 16 Cox C. C. 387; of. Makins v. A.-G. of New 
South Wales, [1894] App. Cas. 57). Where embezzlement is charged 
and larceny is proved, or vice versd, the jury are entitled to convict 
the accused (24 & 25 Vict. c. 96, s. 72). The value of the thing 
taken need not be stated. Where the embezzlement is of goods or 
chattels, they must be specified ; but where it is of money or valuable 
securities, or their proceeds, they may be described as money simply 
(24 & 25 Vict. c. 96, s. 71; 14 & 15 Vict. c. 100, s. 18). The valuable 
security if described need not be set out in facsimile (14 & 15 Vict. c. 
100, s. 5). The embezzled property must be described as that of the 
master, but the indictment need not say from whom it was received. 
Embezzlement is frequently complicated with falsification of accounts 
or of documents found needful by the offender to conceal his pecula- 
tions (see Accounts, Falsification of ; Forgery ; Fraud) ; but owing 

the distinction still maintained between felony and misdemeanor it 
^ in many cases needful to prefer separate indictments for embezzle- 
ment, larceny, and falsification, in cases where the offence does not 
fall within the Larceny Act, 1901. 

The imperfections of the method adopted by the legislature and 
judges in dealing with this crime are well shown by the mass of enact- 
ments above enumerated, and by the many difficulties which arise in 
prosecutions for embezzlement. The Act of 1861 says that the offence 
is to be deemed to be larceny, but since no provision is made, as in the 
ise of larceny by a bailee or by tenants (c. 96, ss. 6, 74) for the use 

1 the ordinary form of indictment for simple larceny, it is held 
ecessary to charge embezzlement as a distinct offence. When this 

is done, the question arises whether the property was misappropriated 
liefore or after it came into the master's possession, this being the 
iolicate discrimination between larceny commonly so called, and 
iiibezzlement by clerks or servants. This led to numberless wrongful 
acquittals, until the provision was made in 1857, which is now embodied 
ni 24 & 25 Vict. c. 96, s. 72 (supra). Another question frequently 
rises under 24 & 25 Vict. c. 96, s. 71, namely, whether it is necessary 
io specify each separate embezzlement, or whether the embezzlement 
"f lump sums may be charged (see Archbold, Cr. PL, 23rd ed., 573). 

The words "clerk or servant" have also caused endless difficulty 
wing to controversies as to whether the accused is a clerk or servant, 
!■ is an agent. It is in reality a question of fact on the course of 
iiiployment, except when the duties and functions are defined solely 
v a written contract or a statute declaring the particular official to be 
clerk or servant (25 & 26 Vict. c. 63, s. 16; B. v. Naj/lor, 1872, L. R 
- C. C. R. 34). But the test usually applied is whether the accused 
was bound to devote all his time to the employer, or was bound not 
merely to carry out instructions as to what to do, but as to wlien and 
liow to do it (B. v. Walter, 1843, 3 Cox C. C. 1). The mode of remunera- 
tion seems immaterial. The decisions are dealt with at great length 
m Russell on Crimes (6th ed.) and Archbold (23rd ed.). The difficulties 
reated by the words clerk or servant may, in most cases, be avoided 
y framing the charge under the Larceny Act, 1901 (supra, p. 200). 



202 EMBLEMENTS 

^mmarij Proceedings. — In the case of embezzlement by clerks or 
servants, where the value of the property embezzled does not exceed 
40s., the accused may (with his own consent) be tried summarily, unless 
he has been previously convicted on indictment. Where the value 
exceeds £2, the accused may not be dealt with summarily if he is over 
sixteen years of age, unless he pleads guilty and the justices accept 
this plea. Persons between fourteen and sixteen may be summarily 
tried for embezzlement if they consent, whatever the amount, and 
children under fourteen may be summarily tried, unless their parents 
object (31 & 32 Vict. c. 112, s. 2 ; 42 & 43 Vict. c. 49). See Juvenile 
Offender. There are also several enactments providing for the sum- 
mary punishment of embezzlement by workmen in special employments, 
in respect of materials intrusted to them (22 Geo. ii. c. 27 ; 17 Geo. iii. 
c. 56 ; 6 & 7 Vict. c. 40 ; and see Burn, Jvstice, 30th ed., tit. " Master 
and Servant "). 

[Authorities.— Rd^vfV., P. C, bk. i. cc. 33, 42, 43 ; Stephen, Dig., 6th ed., 
pp. 258, 271, 276, 310, 425; Archbold, Grim. PL, 23rd ed.; Eussell on 
Grimes, 6th ed., vol. ii. pp. 342, 859-879; Stephen, Hist. Grim. Law, 
vol. iii. pp. 150-160, 172, 175.] 

Emblemen'tS. — Emblements are the growing crops of those 
vegetable productions of the soil which are annually produced by the 
labour of the cultivator, and which a tenant has, under certain con- 
ditions, a right to claim. These conditions are — (1) That his holding 
must be for an interest which is uncertain ; (2) that its determination 
must be due to some act independent of his own will. The whole subject 
is discussed in the article Growing Crops. 

Embracery is an indictable misdemeanor against the adminis- 
tration of justice. It consists in attempting, by bribes or any other 
corrupt means whatever, other than evidence and argument in open 
Court, to influence or instruct a juror, or to incline him to be more 
favourable to one side than to the other in any judicial proceeding. 
It is immaterial whether a verdict is or is not given in the proceeding, 
and whether, if given, it is true or false. A juror who wilfully or 
corruptly consents to embracery is also punishable ; and the offence is 
specially preserved by the Juries Act, 1825, 6 Geo. iv. c. 50, s. 61). 

The punishment on indictment is by imprisonment or fine at the 
discretion of the Court. Under the unrepealed provisions of 32 Hen. 
VIII. c. 9, s. 3, an alternative remedy by action or information for a 
penalty of £10 is given against those who "embrace any freeholders or 
jurors." 

Prosecutions for the offence are very rare, but there was one in 1891 
at the Central Criminal Court, in which the essentials of the indictment 
were considered {R. v. Baker, 113 Cent. Crim. Ct. Sess. Pa{). 374). 

The oflence is usually described as existing at common law. It was 
first dealt with by statute in 1360 and 1363 (34 Edw. ill. c. 8, and 38 
Edw. III. St. 1, c. 12); but all the old Acts referring to it, except those 
already mentioned, are repealed. It is closely connected with Champerty 
and Maintenance {q.v.). 

[Authorities. — Hawk., P. C, bk. i. cc. 85, 86 ; Eussell on Grimes, 6th 
ed., vol. i. p. 486.] 

Emigration. — The law of emigrants, emigrant ships, etc., is 



EMIGEATION 208 

treated under the headings Crew ; Passengers. There are a few sub- 
sidiary points, however, which must be noticed here. 

Parochial Assistance to Emigration. — Authority is given — (1) by the 
Poor Law Amendment Act, 1834, 4 & 5 Will. iv. c. 76, s. 62, to owners 
and ratepayers to raise money on the security of the rates of any parish 
for defraying the expenses of the emigration of poor persons having 
settlements in such parish; (2) by the Poor Law Amendment Act, 1844, 
7 & 8 Yict. c. 101, s. 29, to the guardians of any union or separate 
parish for which a board of guardians is, or shall be, established, to 
exercise the same power ; and (3) by the Poor Law Amendment Act, 
1850, 13 & 14 Yict. c. 101, s. 4, to the guardians of any union or parish 
to expend money in facilitating the emigration of poor orphans and 
deserted children (under the age of sixteen years) who, having no 
settlement, or no known settlement, are chargeable to some parish in 
their union or parish respectively. 

In (1), (2) and (3) alike mutatis mutandis the confirmation of the 
Board of Trade (formerly the Emigration Commissioners) is necessary ; 
the time limited for repayment of sums charged on the rates, etc., is not 
to exceed five years from the time of borrowing ; all sums so raised by 
way of loan for purposes of emigration, or such proportion as the Board 
of Trade by rule or order determine, are to be recoverable against any 
such person, being over the age of twenty-one, who or whose family 
having consented to emigrate, refuses to do so, or, having emigrated, 
returns. 

In (3) (vide supra) the consent in writing to the loan of the guardians 
or a majority of the guardians of the parish of chargeability is necessary, 
as is also the consent to emigration of the orphan or deserted child. 

Emigration of Children in Reformatory, etc., Schools. — Under the 
Reformatory and Industrial Schools Act, 1891, 54 & 55 Vict. c. 23, any 
youthful offender or child detained in or placed out on licence from a 
certified reformatory or industrial school and behaving himself well may 
be, iiiter alia, disposed of by the managers (as validly as if they were his 
parents) by emigration, with his own consent and that of the Secretary 
of State. 

Cruelty to Children. — Where in pursuance of sec. 6 of the Prevention 
of Cruelty to Children Act, 1904, 4 Edw. vii. c. 15, a child has been 
committed to the custody of any person, such person may procure the 
emigration of the child, provided that the Secretary of State is satisfied 
that emigration will be for the benefit of the child and gives his consent, 
sec. 6 (4) ; see also Cruelty to Children. 

Unemployed Workmen. — The central body established under the 
Unemployed Workmen Act, 1905, 5 Edw. vn. c. 18, may assist by 
emigration any unemployed person and his dependants referred to them 
by a distress committee. Eor the method of work of the central body 
and the distress committees, see the Act. 

The conditions under which a central body may aid the emigration 
of an unemployed person and any of his dependants, are as follows : — 
The central body shall be satisfied that the unemployed person and any 
of his dependants whose emigration is to be aided, will be conveyed to 
and received at the place of destination in circumstances which will 
secure or facilitate the immediate fulfilment of the condition that the 
unemployed person shall be put in a position to obtain regular work, or 
other means of supporting himself and any of his dependants who 
accompany him. Persons accustomed to agricultural or horticultural 



204 EMINENCE 

work, other things being equal, are to have preference. See St. R. & 0., 
[1905] p. 1382, and for Ireland {ibid. p. 1415). See also Unemployed 
Workmen herein. 

A permanent office (the Emigrants' Information Office) is established 
as a branch of and under the control of the Colonial Office, and supplies 
authentic information to all persons desiring to emigrate. 

Eminence. — A title applied to cardinals of the Eoman Catholic 
Church. 

Eminent Domain. — The right of the State or the sovereign 
to its or his own property is absolute, while that of the subject or citizen 
to his property is only paramount. The citizen holds his property 
subject always to the right of the sovereign to take it for a public pur- 
pose. This right is called " eminent domain." Although the doctrine 
prevails, and has a wide range in this country (a general sketch of 
the field of law which it covers is given in the article Compensation; 
and see also the provisions of the Defence Acts, which are, strictly 
speaking, the most exact instance of its applications here, and A.-Cr. v. 
Tomline, 1879, 12 Ch. D. 214; its other applications will be found dis- 
cussed under such headings as Lands Clauses ; Eailways), the phrase 
is still in large measure restricted to an American vogue. Some brief 
account of its use and of the scope and working of the doctrine in 
America may be of value for comparative and analogical purposes. 
The constitution of the United States, and of each of the States of the 
Union, prohibits the taking of private property for public use without 
just compensation, and there are statutes in each of the States to regu- 
late the matter. A considerable body of law has grown up in America 
on the subject. The constitutional inhibition is jealously guarded, and 
the Courts have refined with subtlety upon the precise significance of 
the terms employed in the constitutions. Thus, what constitutes a 
"taking," and what is a "public use," and what is "just compensation," 
have been accurately defined and prescribed by the Courts. The State 
may itself take property for its own use, as, e.g. land upon which to 
build a prison or any other public or governmental building ; or it may 
delegate the power to take to a subordinate municipality — a city or 
county — as, e.g. to take land for a street or for widening an existing 
street or alley ; or it may delegate the power to take to a body corporate 
— a railway, gas, water, telegraph, or canal company — as, e.g. to take 
land for a riglit of way for the construction of any purely public work. 
But the right to make use of the public streets of a city for railway or 
other purposes resides primarily in the State, and not in the municipality 
(Beehnan v. Third Avenue Rly. Co., 47 N. E. Eep. 277 ; Ligare v. Chicago, 
etc., Rly. Co., 46 N. E. Eep. 803). 

The exercise of this power by the State, whether 'directly or by 
delegation, is known in American law as the exercise of the right of 
" eminent domain," which may therefore be defined as the power of the 
State to take private property for public use. Sometimes the fee is 
taken, and sometimes only an easement ; and the easement is not neces- 
sarily an exclusive one. Thus, the condemnation by a railway company 
of a right of way in a street does not necessarily operate to vacate the 
street as a public highway. Where a mere easement is taken, any use 
of the property in excess of the precise easement is a trespass which 
the owner of the fee may enjoin. The power of the State or of its 



EMPLOYEES AND WOEKMEN" 205 

delegate is not exhausted by a single exercise, but the right to condemn 
can be invoked repeatedly, as occasion may require. Thus, a railway 
having condemned a right of way, may subsequently condemn more 
of the same land to widen its right of way, or for station purposes or 
otherwise. 

The legal step taken under the power of eminent domain to acquire 
private property is known as a " condemnation proceeding." It is com- 
menced by the filing of a petition on due notice in a prescribed Court, 
and ends in a final order of condemnation, by which only parties and 
privies are bound, and from which there is the usual right of appeal on 
terms. The final order of condemnation has all the force and effect of a 
judgment, so that, for example, it draws interest {Parks v. City of Boston, 
15 Pick. 198; Martin v. City of St. Louis, 41 S. W. Eep. 233). It is 
competent to condemn not only the property of a private citizen held 
for private use, but also the property of a municipality, or of a company 
held for a public use. Thus, it is constitutional to condemn railway 
property for another public use, as, e.g. for a highway crossing, or for the 
use of another line of railway, jointly or exclusively ; or for a railway 
company to condemn a crossing over a public highway. 

In estimating the value of property to be taken for a public use, no 
account is to be taken of its value for such use ( United States v. Seufert 
Bros. Co., 78 Fed. Eep. 520); but when a city, by condemnation pro- 
ceedings, extends a street across a railway, where the railway company 
owns the fee, the measure of compensation is the amount of decrease in 
the value of the use of the land taken for railway purposes, caused by 
its conjoint use as a street. The value of the land, as land, apart from 
its use for railway purposes, cannot be considered {Chicago, etc., Ely, Co. 
V. City of Chicago, 17 U. S. Sup. Ct. Eep. 581). 

[Authorities. — The principal American treatises on the subject are :: 
I^wis on Eminent Domain; Mills on Eminent Domain; Eandolph on 
Eminent Domain.^ 

Emphyteutic Tenure. — By Eoman-Dutch law a grant on 
])erpetual quit-rent is understood to be an emphyteutic tenure ( Wehh v. 
Giddy, Giddy v. Webb, 1878, 3 App. Cas. 908). As to emphyteusis, se& 
Green's Encyclopcedia of Scots Laio, Vol. V., s.v. Emphyteusis. 

Employ; Employed. — These terms are used in law in a 
variety of juxtapositions, which will be found treated under the follow- 
ing heads : — " In his employ," see Master and Servant ; " employed " or 
" engaged " in coasting trade, see Coaster, Vol. III., at p. 117 ; " employed 
in a mine," see Mines and Minerals. The primary meaning of the 
term " to employ " is to retain a person for service and pay him whether 
employed or not ; and not " to find actual employment for," see Elderton 
V. Emmens, 1848, 17 L. J. C. P. 309; 1853, 4 H. L. C. 624; 10 K K. 
006. See also Stroud, Jud. Diet. For meaning of word in "Workmen's 
t'ompensation Act, 1906, see Employer's Liability, Workmen's Com- 
pensation. 

Employers and Workmen, — The Employers and Work- 
men Act, 1875, 38 & 39 Vict. c. 90, enlarged the jurisdiction of the County 
<v0urt in cases of disputes between employers and workmen (see CoUNTV 
Court herein, and Hindley v. Haslem, 1878, 3 Q. B. D. 481), and gave juris- 
diction in cases of disputes where the amount claimed does not exceed 



206 EMPLOYERS AND WORKMEN 

£10 (s. 4 (1)) to "Courts of summary jurisdiction," i.e. (a) as regards the 
city of London, the lord mayor or any alderman of the said city sitting 
at the Mansion House or Guildhall justice-room; (b) as regards any 
police court division in the metropolitan police district, any metropolitan 
police magistrate sitting at the police court for that division; (e) as 
regards any city, town, liberty, borough, place, or district for which a 
stipendiary magistrate is for the time being acting, such stipendiary 
magistrate sitting at a police court or other place appointed in that 
behalf ; (d) elsewhere any two or more justices of the peace to whom 
jurisdiction is given by the Summary Jurisdiction Acts in Petty Sessions 
(s. 10). There is a saving of the jurisdiction of the lord mayor or alder- 
man, or metropolitan or stipendiary magistrate under any other Act 
(ibid.). As to mode of giving security and summary proceedings, 
see sees. 8 and 9. A Court of summary jurisdiction is not to make an 
order for the payment of any sum exceeding £10, exclusive of costs 
(s. 4 (2)), or to require security to an amount exceeding £10 from any 
defendant or his surety or sureties (s. 4 (3)). Absence by a workman 
from his master's service without notice is a "dispute" within the 
meaning of this Act {Glemson v. Hubbard, 1876, 1 Ex. D. 179; followed 
in Charles v. Mortgagees of Plymouth Works, 1890, 60 L. J. M. C. 20, 
where it was held also that the time for bringing a complaint is not 
limited to the six months prescribed by the Summary Jurisdiction Act, 
1848). For the purpose of the Act, "workman" does not include a 
-domestic or menial servant, but save as aforesaid means any person who, 
being a labourer, servant in husbandry, journeyman, artificer, handi- 
•craftsman, miner, or otherwise engaged in manual labour, whether under 
the age of twenty-one or above that age, has entered into or works 
under a contract with an employer, " whether express or implied, oral 
or in writing, and whether a contract of service or one personally to 
execute any work or labour." 

The following are leading and recent cases on the definition clause 
of the Act : — 

Domestic and Menial Servants. — These are expressly excluded. By 
a domestic servant is meant one usually described as " living in " his 
master's house. Gardeners and huntsmen have been held to be " menial " 
servants {Nowlan v. Ablett, 1835, 2 C. M. & E. 54 ; 4 L. J. Ex. 155 ; 
Nicoll V. Greaves, 1864, 33 L. J. C. P. 259 ; 10 L. T. 531). But a house- 
keeper of a large hotel is not a domestic servant {Lawler v. Linden, 
1876, Ir. R. 10 C. L. 188). 

Servant in Husbandry. — A person engaged to keep the general farm 
accounts, to weigh out cattle food, set men to work, and lend a hand 
generally does not come within the term {Davies v. Lord Berwick, 1861, 
30 L J. M. C. 84; 3 L. T. 697). See also the case of a waggoner 
{LUley V. Elwin, 1848, 11 Q. B. 742; 17 L. J. Q. B. 132). 

Engaged in Manual Labour. — For the general interpretation of the 
term see the judgment of Brett, M.R., in Morgan v. London General 
Omnibus Compa7iy, 1884, at p. 833, in which case it was decided that 
an omnibus conductor is not within the definition ; nor is a tramcar- 
driver {Cook v. North Metropolitan Tramways Company, 1887, 18 Q. B. D. 
683); nor is a guard of a goods train, because his main duty is to look 
after the train, even though at times he may have to assist in uncoupling 
and shunting {Hunt v. Great Northern Railivay Company, [1891] 1 Q. B. 
601); nor is a grocer's assistant who may have to help in handling casks, 
-etc. (" If the mere user of the hands in matters incident to a man's 



EMPLOYEES AND WORKMEN 207 

employment is to constitute him a manual labourer it would extend the 
Act to every shop assistant in every shop, great or small, which cannot 
have been the intention of the legislature," per Brett, M.R., in Bound 
V. Laurence, [1892] 1 Q. B., at p. 299) ; and so neither is a hairdresser 
(B. V. County Louth Justices, [1900] 2 Ir. R. 714). As, to whether a 
icabman is a workman in relation to his cab proprietor, see Gates v. Bill, 
[1902] 2 K. B. 38. Lace " clippers " (who take work home, and who 
may do such work themselves or let it out to others), were paid weekly, 
and from their wages a certain amount was deducted for damages. 
They do not come within the definition of "workman" in sec. 10 of the 
Act inasmuch as they were not bound to execute any part of the work 
'personally, and that, therefore, the provisions of sec. 2 of the Truck Act, 
1896, have no application (Squire v. Midland Lace Compaiiy, [1905] 
2 K. B. 448). 

Workman. — Colliery. Independent contractor. See Marrovj v. 
^Flimhy a7id Boughton Moor Coal and Fire Brick Com^pany, [1898] 2 
Iq. B. 588, and Fitzpatrick v. Evans, [1902] 1 K. B. 505. 
' The term workman includes neither workmen of the Crown {Gilbert 
V. Corporation of the Trinity House, 1886, 17 Q. B. D. 795), nor seamen 
-ec. 13 of the Act, and sec. 11 of 43 & 44 Vict. c. 16). 

For definition of " workman " under the Workmen's Compensation 
Act, 1906, see Employers' Liability. (See further, Apprentice, Vol. I. 
p. 433; Apprentices, Sea; Combination; Conspiracy; ExMployers' 
sLubility; Factories and Workshops; Infant; Master and 
Servant; Truck Acts; Trade Union.) 

{Aidhorities. — In addition to the text-books appended to the above 
ii'ticles, see Arnold's Employers' and Workmen s and Conspiracy and 
I'rotection of Property Acts (1875); Davis, Lahour Laws of 1875.] 



FORM. 

Foi'm of Undertaking by Defendant to Perform Contract. 

(The Employers and Workmen Act, 1875.) 

[Being No. 432 of the County Court Rules, 1903.] 

In the County Court of holden at 

between 
A. B., Plai4itiff, 

and 
C. D., Defendant. 

Whereas it has been found by this Court, on the day of 

19 , that the defendant had broken the contract, for the breach of 
which he was summoned : 

And whereas the Court would have awarded to the plaintiff the 
sum of £ by way of damages suffered by him in consequence of such 
breach, and would have ordered the defendant to have paid such sum, 
but that the defendant was willing to give security for the performance 
by him of so much of the contract as remains unperformed : 



208 



EMPLOYEES' LIABILITY 



Now, therefore, I, the undersigned defendant, and we, the under- 
signed sureties {or the undersigned surety), do undertake that the said 
defendant will perform so much of the said contract as remains unper- 
formed, that is to say {here set out so much of the contract as remains to he 
performed) : 

And I, the said defendant, and we {or- 1), the said sureties {or surety), 
hereby severally acknowledge ourselves bound to forfeit to A. B., the 



plaintiff, the sum of pounds and 

said defendant fails to perform what he has 

perform. 

(Signed, when not taken orally) 



shillings in case the 
hereby undertaken to 

C. D., Defendant. 

E. F. -^ 

p tt' y Sureties. 



Taken (orally) before me this 



day of 



19 . 
, Registrar, 



Note. — Where the undertaking is given orally, strike out the wwds 
*^ undersigned" where they occur, and insert the woi'd ^'oi-ally" after ^' taken." 



Employers' Liability- 

TABLE OF CONTENTS. 



1. An Employer's Liability at 

Common Law . . . 209 
Employers' Duty Personal 

only . . . .210 
Liability for Negligent 

System. . . .209 
Limitation of Common- 
Law Liability . . 210 
Common Employment . 210 
Lord Campbell's Act . 212 
Volenti non fit injuria . 211 

2. The Liability of an Em- 

ployer UNDER THE EM- 
PLOYERS' Liability Act of 
1880 .... 213-219 

3. An Employer's Liability 

UNDER the Workmen's 
Compensation Act, 1906 . 219 
New Liability . . .220 



Classes of Workmen In- 
cluded . . . .221 
Application to Industrial 

Disease .... 227 
Persons to Receive and 

Pay the Compensation 2.31 
Injury by Accident . . 234 
Restrictions on Right to 

Receive Compensation . 238 
Election . . . .241 
The Compensation . . 243 
Liability of Principal for 

Contractor . . .249 
Contracting out . .251 
Medical Examination . 252 
Medical Referees . .254 
Arbitration . . .254 
Registration of Award or 

Memorandum . . 257 
Appeal . ^ . . 258 
Miscellaneous . . . 260 



The " law of employers' liability " has by usage become the expression 
employed to express the liability imposed by the law of England upon 
employers of labour to make pecuniary compensation to their workmen 
in respect of personal injury suffered in the course of their employment. 
This liability has a three-fold origin, and may conveniently be treated of 
by considering separately each of the three sources from which it arises 
as follows : — 

1. The Employer's liability at common law. 



5 



EMPLOYEES' LIABILITY 209 

2. The Employer's liability under the Employers' Liability Act, 

1880. 

3. The Employer's liability under the Workmen's Compensation 

Act, 1906.1 



1. An Employer's Liability at CoMxMOn Law. 



A general principle of the common law imposes upon every person 
the obligation of regulating and governing his own actions and business 
in such a manner as not to cause injury to others {Sic utero tuo ut 
alicnum non laedas). Anyone guilty of a breach of this duty becomes 
liable for the consequences resulting from the breach. An employer 
being no exception to the rule, it follows that for his personal negligence 
occasioning injury to his workmen, he always has been, and is still 
responsible. 

Further, it is a logical consequence of the duty that when, for his 
own purposes, he brings into existence commercial undertakings which, 
if not superintended and controlled with due care and caution, involve 
risks of personal injury to his workmen engaged therein, the obligation 
rests upon him to exercise such care and caution. 

Liahility for Negligent System. — It follows that an employer is 
responsible at common law, as well to his workmen as to other 
persons, for injury caused by the negligent system on which his 
business, if controlled and managed by himself, is carried on (Sword 
V. Cameron, 1 Sc. Sess. Cas. (2nd series), 490; Bartonshill Coal Co. v. 
31'Guire, 3 Macq. 300). 

Such negligence m.ay consist either in a defective system of manage- 
ment, or in the employment of defective agencies for the carrying on 
of his undertaking. Thus a failure on his part to provide machinery 
or workmen reasonably capable of doing the required work in a safe 
manner, is a breach of this common -law duty, for which, if injury 
results, he has always been responsible {Broiun v. Accrington, 1865, 
3 H. & C. 511). The common-law liability of the employer in this 
connection cannot be better stated than in the words of Lord Herschell 
in his judgment in the case of Smith v. Baker, [1891] A. C. 325 : — 

It is quite clear that the contract between employer and employed in- 
volves, on the part of the former, the duty of taking reasonable care to 
provide appHances, and to maintain them in a proper condition, and so 
to carry on his operations as not to subject those employed by him to 
unnecessary risk. 

(See also Brydon v. Stewart, 1855, 2 Macq. H. L. Cas. 30.) 

Definition of Negligence. — The legal meaning of the term " negligence" 
was well defined by Alderson, B., in the case of Blythc v. Birmingham 
Waterworks, 1856, 11 Ex. 781, 784; 25 L. J.Exch. 2i3, in the words fol- 
lowing : — " The omission to do something which a reasonable man, guided 

^ The Act of 1897 and the Act of 1900 are repealed by the present Act, but con- 
tinue to apply to cases where the accident happened before tlie commencement of 
this Act, except to the extent to which the Act applies to these cases (s. 16 (2)). The 
Act of 1906 comes into operation on July 1, 1907. The former Acts are only dealt 
witli in this article in so far as they affect the provisions of the present sUitute, or 
where the difference between the two statutes may throw light on the meaning of 
the present one. See Ruegg's Employer^ Liability and Workmen's Compensation^ 
7tli ed. 

VOL. v. 14 



210 EMPLOYEES' LIABILITY 

by those considerations which ordinarily regulate the conduct of human 
atlairs, would do ; or the doing something which a prudent and reason- 
able man would not do." 

This definition has often been accepted as correctly expressing the 
legal signification of the word, and has been declared to juries as a correct 
legal definition on many occasions. 

Employers' Duty Personal only. — It must always be borne in mind 
(for herein lies the secret of the protracted dissatisfaction upon the sub- 
ject of employers' liability and the recent legislation) that this common- 
law duty resting upon the employer was a personal duty only, and 
passed from him when he delegated his control as employer to other 
hands. The responsibility flowing from his duty at common law was 
strictly interpreted and severely restricted by the Courts of law, and the 
curtailing effect of some other principles of the common law, vigorously 
applied, soon rendered it, as far as regarded the w^orkmen, little more 
than a liability in name. 

Limitation of Common Lav: Liability. — The common -law doctrine 
that all personal actions died with the persons entitled to bring them, 
or against whom they were brought {actio personalis moritur cum per- 
sond), relieved the employer from the consequences of injuries resulting 
in death, and protected his estate from liability in cases where he died 
before judgment was recovered against him. 

Although this is altered as regards injury resulting in the workman's 
death by the general operation of Lord Campbell's Act, 9 & 10 Vict, 
c. 93, and to a limited extent by the Workmen's Compensation Act, 
1906, 6 Edw. VII. c. 58, in case of the employer's death, the common-law 
principle still remains, and in some cases may apply. 

By far the greatest blow to the practical utility of the employer's 
common-law liability was dealt by a decision of the Court of Exchequer 
in the year 1837, in the well-known case of Priestly v. Foivler, 1838, 
3 Mee. & W. 1 ; 49 E. E. 495. This case decided that another important 
and well-known principle of law, of universal application to all other 
relations, should have no application to the relation between employer 
and workmen. We refer to the principle expressed by the maxim, " Qui 
facit per alium facit per se," the application of which would have 
rendered an employer responsible to a workman for the negligence of 
his agents and other workmen engaged in the execution of work for 
his profit. 

Common Employment. — Thus came into existence the "doctrine of 
common employment." It may be declared as follows : — If the person 
occasioning, and the person suffering, the personal injury, are fellow- 
workmen engaged in a common employment, and under a common 
master, such master is not responsible for the results of the injury. 

The case of PHestly v. Fowler, supra, having been followed in many 
other cases (see Hutcliinson v. The York, Newcastle, and Berwick Ely. Co., 
1850, 5 Ex. Eep. 343 ; 19 L. J. Ex. 266 ; Wigmore v. Jay, 1850, 5 Ex. 
Rep. 354 ; Lovell v. Howell, 1876, 1 C. P. D. 161 ; 45 L. J. C. P. 387). was 
finally, in the year 1860, declared to be the law of England and Scot- 
land alike by the House of Lords in the case of The Bartoiishill Coal Co. 
v. Reid, 1858, 3 Macq. H. L. 266. Various decisions carried this doctrine 
to an extent, logical perhaps, but in practice inconvenient and somewhat 
hard. As illustrations — a chief engineer was held to be in a common 
employment with one of the ordinary seamen employed by the same 
company {^carle v. Lindsay, 1862, 11 C. B. N. S. 429 ; 31 L. J. C. P. 106); 



I 



EMPLOYEES' LIABILITY 211 

a railway guard with a ganger of platelayers in the service of the same 
company (Waller v. South- Eastern My. Co., 1863, 2 H. & C. 102; 32 
L. J. Ex. 205) ; a builder's labourer with his foreman ( Wigmore v. Jay, 
1850, 5 Ex. Eep. 354; 19 L. J. Ex. 300); and the master of a ship with 
one of the sailors employed by the same company (Hedley v. Pinkney 
Shipping Co., [1894] A. C. 222; 61 L. J. Q. B. 79). 

In the year 1868 the House of Lords in terms laid down that the 
relative position of the workmen and their status in the works made no 
difference to the application of the doctrine of common employment; 
even the fact that one of them may fill such a position of authority 
as would justify his description as a " vice-master " does not take him 
out of the category of a fellow-workman ( Wilson v. Merry, 1868, L. E. 
1 H. L. Sc. 326). 

The workmen, however, must be employed not only in a common 
employment, but under the same master, before the defence of " common 
employment" can be set up against them (Johnson w. Lindsay, [18911 
A. C. 371 ; 61 L. J. Q. B. 90). 

If the injury to a workman is caused by the breach of a duty 
imposed by statute upon his employers, as by the Mining Acts, the 
Factory Act, or other like statutes, this breach is regarded as personal 
default on the part of the employer, for which he must make amends. 
He cannot delegate such duty to another, so as to enable him to set 
up as an answer to a workman injured thereby, the doctrine of common 
employment ; at all events, where the statutory duty is an absolute one, 
and imposed upon him in the interests of his workmen's safety {Groves 
V. Lord Wimhorne, [1898] 2 Q. B. 402 ; 67 L. J. Q. B. 862 ; 80 L. T. 284 ; 
14 T. L. E. 493). 

The law has been declared to the same effect in Scotland (Bett v. 
Dcdmeny Oil Co., 1905, 7 F. 787; 42 S. L. E. 638). 

A yet further inroad upon the small residuum of the employer's 
common-law responsibility was made by decisions of the Courts estab- 
lishing that the workman might agree with the employer to take upon 
liimself the risk of any consequences which might result to him through 
the non-fulfilment by the employer of his duty, and further holding that 
such an agreement need not be in express terms, but could be implied 
from the conduct of the parties (see JDynen v. Leach, 1857, 26 L. J. Ex. 
261; Laxton v. Hawksivorth, 1872, 26 L. T. 851). 

Volenti non fit injuria. — The principle of these decisions is often 
enunciated in what has been called the somewhat barbarous legal 
maxim, " Volenti non fit injuria'' It was within the last few years 
most exhaustively discussed and considered by Bowen, L.J., in the 
well-known case of Thomas v. Quarterniaine, 1887, 18 Q. B. D. 685; 
o7 L. T. 537. In his judgment therein he lays stress on the fact that 
the maxim is not scienti non fit i7ijuria, but volenti non fit injuria, and 
declares that before it can apply the workman must both know of and 
'ippreciate the risk and danger, and then voluntarily agree to take the 
risk (see also Yarmouth v. France, 1888, 19 Q. B. D. 647; 57 L. J. Q. B. 7; 
<J}mrch V. Appleby, 1889, 58 L. J. Q. B. 144; 60 L. T. 542). 

In the year 1891, in the important case of Smith v. Baker, [1891] 
A. C. 3; 60 L. J. Q. B. 683, the House of Lords gave most careful 
consideration to this question. The judgments of the majority of the 
Lords, although not declaring the doctrine to be bad law, or indeed 
finding fault with the declaration of it by Bowen, L.J., in Thomas v. 
Quartcrmaine, must be taken to have greatly contracted the scope of 



212 EMPLOYERS' LIABILITY 

its application. The discussion turned chiefly upon the inference to be 
drawn from the fact of a workman's continuance in the employment, 
with knowledge that he thereby incurred the risk of personal injury. 

As the result of the case it must now be accepted as law that, 
although a workman may, having full knowledge and appreciation of 
the risk he runs, nevertheless agree with his employer to run this risk, 
yet it is no part of the implied contract of service that the workman 
takes the risk of injury arising from his employer's negligence, neither 
can such a contract be implied from the workman's continuance in the 
employment with knowledge of the risk. 

The question may still be regarded as open whether, in a case where 
the alternative of entering upon or of leaving the employment or of 
working subject to a known risk is in plain terms offered to the work- 
man, his election to work would per se bring him within the application 
of the doctrine. 

Before the principle of " Volenti noii fit injuria'' can be applied 
to deprive a plaintiff of the redress to which he would otherwise be 
entitled, an express finding must be obtained from the jury, or tribunal 
of fact, to the effect that the plaintiff had agreed to run the risk of the 
defect or negligence which led to the injury. A finding that he had 
the same means of knowing the risk that the defendant had, and that 
he in fact did know it, is not sufficient ( Williams v. Birmingham Battery 
Co., [1899] 2 Q. B. 338 ; 68 L. J. Q. B. 918 ; 15 T. L. R. 468). 

Contrihntory Negligence. — Lastly, the employer was always relieved 
from the consequences of his breach of duty, by showing that the 
injured workman had himself been guilty of negligence in part conducing 
to the result for which he was attempting to hold the employer 
responsible; in other words, by showing that the workman had been 
guilty of contributory negligence. 

We may sum up the employer's common-law liability, as at present 
existing, thus : He is responsible to his workmen for the consequences 
of personal injury caused by his personal negligence if judgment can be 
obtained against him during his lifetime, but not responsible to the 
relatives or representatives of a deceased workman. He is absolved 
from responsibility for the negligence of those to whom he delegates 
the duty of management and control of his business, and for the 
negligence of fellow- workmen of the workman injured, save where the 
duty is one imposed upon him by statute. He can be freed from 
responsibility by showing that the injured workman took the risk of 
his breach of duty, or by showing that the injured workman was 
himself guilty of contributory negligence. 

Lord Camphell's Act. — The first important statute extending this 
liability was an Act applying to England and Ireland (but not to 
Scotland), passed in the year 1846, and known as Lord Campbell's Act, 
9 & 10 Vict. c. 93. This Act, for a full treatment of which the reader 
is referred to the articles Actio personalis moritur cum persona, and 
Campijell's (Lord) Act (Accidents), enabled the personal representatives 
of a workman, as of any other person whose death was caused by tlie 
wrongful act, neglect, or default of another, to bring an action against 
the person guilty of such wrongful act, neglect, or default, to recover 
ilamages for the benefit of the relatives of the deceased therein named 
(ss. 2-5 ; and see Amendment Act, 27 & 28 Vict. c. 95). 

To this extent, and from this time, the application of the doctrine 
actio 2^r8onali8 m-oriticr ciLni persond has been restricted. 



EMPLOYERS' LIABILITY 213 

In consequence of the increase in magnitude of private business 
undertakings where the employer took but a small part in the actual 
management, and the establishment of companies with limited liability, 
where the employer was but an abstract personality, it was felt that 
the application to such undertakings of the doctrine of common 
employment in its entirety was productive of hardship. 

This feeling was one of the chief causes which led to the passing 
of the Employers' Liability Act of 1880, which Act came into operation 
on the 1st of January 1881. 

2. The Liability of an Employer under the Employers* 
Liability Act, 1880 (43 & 44 Vict. c. 42). 

The general scope and object of this Act is to so far expand the 
employer's responsibility as to make him liable for the negligent acts 
or default of those to whom he has delegated his duties of control and 
management, and of those whom he has placed in positions of authority 
over his workmen. 

The general effect of the statute was stated by A. L. Smith, J., in 
Wchlin V. Ballard, 1886, 17 Q. B. D. 125, in the following terms :— " The 
workman, when he sues his master under the provisions of the Act for 
my of the five matters designated in it, shall be in the position of one 
' >f the public suing, and shall not be in the position a servant thereto- 
fore was when he sued his master ; in other words, that the master shaU 
liave all the defence he theretofore had against any one of the public 
suing him, but shall not have the special defences he theretofore had 
when sued by his servant." 

Subject to this inroad, the doctrine of common employment is 
allowed to remain as a defence to the employer, with the exception 
that in the case of railway servants, owing probably to the hazardous 
nature of their employment, its application is, as we shall see, further 
restricted. 

By the various provisions of the Act the employer is made responsible 
where personal injury is caused to the workman from any of the following 
causes : — 

(a) Any defect in the condition of the ways, works, machinery, or 
plant, connected with or used in his business, hut only if such defect arose, 
or had not been discovered or remedied, owing to his negligence (this, as 
before seen, is no new liability), or to that of the person to tvhom he has 
entrusted the duty of seeing that they are in pi'oper co'udition (s. 1, subs. 1 
read with s. 2, subs. 1). 

Cases upon this Section. — The defect in the " ways " must be in their 
permanent or quasi-permanent condition. A temporary obstruction 
negligently placed or thrown thereon does not make the condition of 
the way itself defective {M'Giffin v. Palmers Shipbuilding Co., 1883, 
10 Q. B. D. 5 ; 52 L. J. Q. B. 25 ; 47 L. T. 346, followed in Fegram v. 
Dixmi, 1886, 55 L. J. Q. B. 447 ; 58 L. T. 762 ; see also Wood v. Dorrall, 
1886, 2 T. L. E. 550 ; Bromley v. Cavendish Spinning Co., 1886, 2 T. L. R 
'"^Sl). The " way " need not be a defined path. The whole of a yard 
or workshop over which the workmen pass, may be a " way " within the 
meaning of the Act (Willetts v. Watts, 1893, 8 T. L. K. 533). The 
" works " need not be the employer's, in the sense that he is owner of 
the same. Land or premises upon which he takes his workmen, and 
over the condition of which he has for the time being control, may 



214 EMPLOYEES' LIABILITY 

be considered his for the purposes of the Act {Brannigan v. Rohinsoii, 
1892, 61 L. J. Q. B. 202). Works in course of erection, intended upon 
completion to be used in the employer's business, become his works only 
when so entered upon {Hcrm v. Mark Finch, 1886, 17 Q. B. D. 187). 

The word " plant " has received a very wide interpretation, and has 
])een held to include both animate and inanimate chattels. A vicious 
horse used in the employer's business has been held to be defective 
plant (Yarmovth v. France, 1888, 19 Q. B. D. 647; 57 L. J. Q. B. 7). 
The definition of the word " plant " given in this case by Lindley, L.J., 
includes " whatever apparatus is used by a business man for carrying on 
his business, not his stock-in-trade which he buys or makes for sale, but 
all goods and chattels fixed and moveable, live or dead, which he keeps 
for permanent employment in his business." 

The defect in the plant, machinery, etc., may exist either in the 
condition of the plant itself, or in its unfitness or unsuitability for the 
purpose for which it is used (Cripps v. Judge, 1887, 13 Q. B. D. 583 ; 
53 L. J. Q. B. 517; 51 L. T. 181, following ffeske v. Samuelson, 1883^ 
12 Q. B. D. 30; 53 L. J. Q. B. 45; 49 L. T. 474). This unfitness or 
unsuitability must be with reference to the purpose for which it was 
supplied or used by the employer. An unauthorised use or application 
of plant, etc., to purposes for which it was not supplied or intended 
does not make the employer liable for defective plant {Jones v. Burford, 
1883, 1 T. L. It. 137). The plant, like the ways or works, need not 
belong to the employer. It is sufficient that it is used in his business 
{Bcicon V. Gray, Daives & Co., 1887, 3 T. L. K. 557 ; Biddle v. Hart, [1907] 

1 K. B. 649). 

Machinery is not defective merely because it is dangerous, but if the 
danger is such that it cannot be used by the workmen, even though 
they take all reasonable care, without great risk of personal injury, it 
may be held to be defective within the meaning of the Act (Walsh 
V. Whiteley, 1888, 21 Q. B. D. 371 ; 57 L. J. Q. B. 586). Unfenced 
machinery may be defective plant (lies v. Abercarn Flannel Co., 1887, 

2 T. L. E. 547). 

The defect, either in the ways, works, machinery, or plant, must be 
one implying negligence on the part of the employer or his deputy. The 
action must be founded upon negligence, and can succeed only where 
this is proved {Moore v. Gimsmi, 1889, 58 L. J. Q. B. 169; Kiddle v. 
Zovett, 1886, 16 Q. B. D. 605; 34 W. E. 578). 

(b) The negligence of his tvorkman to whom he has entrusted p)0^cers oj 
superintendence or control. — The workmen for whose negligence by sec. 1, 
sub-sees. 2 and 3, the employer is made liable, are (i.) those whose sole or 
principal duties are those of superintendence and who are not ordinaril}' 
engaged in manual labour (s. 8) ; (ii.) those to whose orders or directions 
the workmen are bound to conform where injury result^ from their so 
conforming. 

The superintendent, under subsec. 2, must not only be guilty of 
negligence, but the negligence must be whilst in the exercise of his 
superintendence {Shaffers v. General Steam Navigation Co., 1883, 10 
Q. B. D. 356 ; 52 L. J. Q. B. 260 ; 48 L. T. 228 ; Osborne v. Jackso^i, 1883,, 
11 Q. B. IX 619 ; 48 L. T. 643). 

Tlie words " any superintendence," having regard to the latter words of 
the sub-section and to the provision in sec. 8, requiring that the principal 
duties shall be those of superintendence, are somewhat misleading. 

The workman entrusted with the power of giving orders or direc- 



EMPLOYEES' LIABILITY 215 

tions, for whose negligence the employer is liable under subs. 3, may 
be himself engaged in manual labour. The orders given by him need 
not be express orders, but may be implied from the course of the business 
(Milward v. Midland My. Co., 1885, 14 Q. B. D. 68 ; 54 L. J. Q. B. 202 ; 
52 L. T. 453); but they must be orders or directions implying some 
authority in the person giving them, and not mere directions from one 
workman to another necessitated by, or adopted for, the convenience 
of carrying on of the work on which both are engaged {Howard v. 
'Bennett, 1889, 58 L. J. Q. B. 129 ; 60 L. T. 152 ; Snoivden v. Baynes, 1890, 
24 Q. B. D. 568 ; 59 L. J. Q. B. 325). 

It has been decided by the Court of Appeal {sed qucere) that the 
employer is fixed with liability under this subs. (3) if the workman is 
injured owing to the negligence of the person giving the order or direc- 
tion, although such order or direction was not negligent in itself, but a 
right and proper one, if but for conforming to it the workman would not 
have suffered the injury. 

In other words, the order or direction need not be improper and 
need not be the causa causans if it is the causa sine qud non of the 
injury (Wild v. Waygood, [1892] 1 Q. B. 782; 61 L. J. Q. B. 391; 
Wright v. Wallis, 1887, 3 T. L. R. 779; Kellard v. Roohe, 1888, 21 
Q. B. D. 367 ; 57 L. J. Q. B. 599). It is thought that the most satis- 
factory opinion as to the meaning of this sub-section is that laid down 
by Kay, L.J., in Wild v. Waygood, where he says: "The negligence 
referred to must have an intimate connection with the order, and with 
the conforming of the workman thereto at the time of the injury." 

(c) The act or omission of any person in his service done, or made in 
obedience to his rides or hy-laivs, or in obedience to particidar instructions 
given by any person delegated by him with authority on that behalf (s. 1,. 
subs. 4). 

This sub-section imposes a liability for acts or omissions done or 
made — 

(i.) In pursuance of rules or by-laws, but only when such rules or 
by-laws are improper (s. 2, subs. 2). In a case where they are sanctioned 
by Parliament or by a Government Department, they are not for the 
purposes of the Act to be deemed improper (s. 2, subs. 2) ; 

(ii.) In obedience to particular instructions given by any person 
delegated with the authority of the employer in that behalf ; but, again, 
only where such particular instructions are improper, i.e. negligent (s. 2, 
subs. 2). 

This last clause is vague, and it is difficult to say to what state of 
circumstances it could apply. Whether the particular instructions are 
to emanate from the employer himself, in which case the enactment 
would appear to be unnecessary, or whether the employer is to specially 
authorise some person to give the particular instructions to the workman 
is doubtful. No cases have been decided upon these words, and the 
writer is not aware of any action having been founded upon them. 

{d) The negligence of any pierson in the service of the emjjloycr who Ims 
charge or control of any signal, points, locomotive engine, or train upon a 
railway. 

This is the special beneficial clause for railway servants before men- 
tioned. No definition is given in the Act of the words " train " or " rail- 
way." It has been decided that they must be construed in their popular 
sense. " Railway " has been held to include a temporary line of rails 
used by a. rail way contractor {Doughty v. Firbank, 1883, 10 Q. B. D. 358 ; 



216 EMPLOYEES' LIABILITY 

52 L. J. Q. B. 480 ; 48 L. T. 530) ; and " train," a number of connected 
railway trucks without an engine, and worked from a capstan at a 
distance by a fixed hydraulic engine {Cox v. G. W. Ely. Co., 1882, 
9 Q. B. D. 106). On the other hand, it has been held that a steam- 
crane which could be propelled along a fixed set of rails is not a loco- 
motive engine within the meaning of the Act {Murphy v. Wilson, 1883, 
52 L. J. Q. B. 524; 48 L. T. 788). 

The negligence must be not only on the part of the person who has 
the charge or control, but must be his negligence in the performance of 
his duty of charge or control. This was held by the Court of Queen's 
Bench in the case of Gihhs v. G. W. Ely. Co., 1883, 11 Q. B. D. 22 ; 53 
L. J. Q. B. 543, and approved by the Court of Appeal. It appears to 
conflict with the principle laid down in the case of Wild v. Waygood, 
ante, in which, as before stated, we think some of the judges laid down 
the scope of the section in somewhat too wide terms. In M'Cord v. 
Cammell, [1896] A. C. 57; 65 L. J. Q. B. 202; 73 L. T. 634, the House 
of Lords decided, with regard to the meaning of this sub-section, that an 
engine-driver does not necessarily cease to be in charge or control of 
the carriages composing his train, because they are for some purpose 
uncoupled from the engine. They also held that the words of the 
sub-section do not necessarily point to one person only being in charge 
of the whole train. 

It is believed that a tramway is not a " railway " within the meaning 
of this sub-section, but there is little doubt that a railway constructed 
under the Light Kailways Act, 1896, would fall within it. 

Defences of the Em^ployer. — The various heads we have considered 
sum up the liability imposed upon the employer by the Employers' 
Liability Act, 1880. The workman, or his representative, in enforcing 
this liability is placed in the same position as if he had not been a 
workman of the employer, i.e. in the same position as a stranger. He is 
Hable to have set up in answer to his claim, any or all of the defences 
which could be set up against a stranger enforcing liability at common 
law. These defences are generally one or more of the following : — 
{a) That the accident was not caused by negligence ; (h) that the servant 
who committed the wrongful act was acting wilfully, and not in the 
interest of the employer ; (c) that the servant causing the injury was 
not acting within the scope of his authority ; {d) that the employer 
owed no duty to the workman at the time of the injury, e.g. that he was 
a trespasser at the place where it occurred ; {e) that the workman was 
himself guilty of contributory neghgence ; (/) that the workman volun- 
tarily took the risk from which the injury resulted. In addition to the 
above, the Act gives to the employer two further defences to any action 
brought by his workman. 

First, the workman cannot recover if the employer can prove that 
lie knew of the defect or negligence which caused his injury, and failed 
within reasonable time to give or cause to be given information thereof 
to the employer or to some person superior to himself in the service of 
the employer, unless he was aware that the employer or such superior 
knew of the said defect or negligence (s. 2, subs. 3). Under this sub- 
section the act of culpability, whicli is to disqualify the injured work- 
man from recovering damages, is the failure to inform of defects or 
negligence in a case where he is unaware whether or not the employer 
or his own superior in the service knows of the same. The intention of 
the legislature appears to have been to impose upon every workman, for 



EMPLOYEES' LIABILITY 217 

the purposes of their mutual protection, the duty to inform of existing 
defects or negligence. That the employer or superior was in fact aware 
of the defect or negligence does not excuse the workman who is ignorant 
of their state of mind upon the subject. We know of no reported 
decision upon this point, although it has arisen and been discussed in 
several cases. 

Secondly, the employer can set up the defence that he has received 
no notice of injury as required by sec. 4 of the Act, or that the action 
has not been commenced against him within the time prescribed by the 
same section, viz., six months from the date of the injury, or, in case of 
death, twelve months from the time of death. 

These defences are special defences, of which notice must be given 
five clear days before the return day of the summons {Convoy v. Peacock^ 
[1897] 2 Q. B. 6 ; 66 L. J. Q. B. 425). 

The notice must be given within six weeks from the time of injury 
sustained (s. 4). It must be in writing {Moyle v. Jenkins, 1881, 8 Q. B. 
D. 116; 51 L. J. Q. B. 112), and should contain the name and address of 
the injured workman, and, in ordinary language, the cause of the injury 
and the date on which it was sustained (s. 7). It may be served by 
delivery to the employer at his residence or place of business, or by 
registered letter addressed to him at his last known place of residence 
or place of business. If sent by registered letter, proof of its posting, 
properly addressed, is good notice under the Act, although the letter 
miscarries (s. 7) {Prevesi v. Gatti, 1888, 4 T. L. E. 487). The same 
section declares that the notice is not to be deemed invalid by any 
defect or inaccuracy therein, unless the judge shall think that the 
defendant is prejudiced thereby, and that the defect or inaccuracy was 
for the purpose of misleading. Soon after the coming into force of the 
Act, it was held that although defects or inaccuracies might be excused, 
yet if the notice did not in substance give the information required by 
sec. 7, it could not be regarded as a notice under the Act at all {Keen v. 
Milkvall Dock Co., 1881, 8 Q. B. D. 482 ; 51 L. J. Q. B. 277 ; 46 L. T. 472). 
This severe construction has not been followed ; and at the present time 
a notice is held good, though wanting in one or more of the requirements 
of the section, if the judge thinks such defects are the result of accident, 
and that the employer is not prejudiced thereby {Stone v. Hyde, 1881, 
9 Q. B. D. 76; 51 L. J. Q. B. 452; 46 L. T. 421; Carter v. Drysdale, 
1884, 12 Q. B. D. 91; 53 L. J. Q. B. 557; 32 W. E. 171; Hearn v. 
Phillips, 1884, 1 T. L. E. 475; Prevesi v. Gatti, snpra). 

Although notice should be given by registered letter, the posting of 
a non-registered letter, properly addressed, is primd facie proof of service, 
i.e. the onus is thrown upon the defendant of showing it did not reach 
him {Prevesi v. Gatti, supra). 

In case of death resulting from the injury, the judge has power to 
excuse the want of notice if, in his opinion, there was reasonable excuse 
for the same not having been given. 

The six or twelve months within which the action must be commenced 
are calendar months (Interpretation Act, 1889, 62 & 63 Vict. c. 63, s. 3). 

In case of death, if the workman is employed by a Public Authority, 
the Public Authorities' Protection Act, 1893, applies, and, notwithstand- 
ing the usual time allowed by the Employers' Liability Act, limits the 
time within which the action can be brought to six months. See Parker 
V. London County Council, [1904] 2 K. B. 501 ; 73 L. J. K. B. 561 ; 
20 T. L. E. 271 ; Williams v. Mersey Docks aixd Harbour Board, [1905] 



218 EMPLOYERS' LIABILITY 

IK. B. 804; 74 L. J. K. B. 841 ; 92 L. T. 444; Lylcs v. Southend Corporation, 
1905, 2 K. B. 1 ; 74 L. J. K. B. 848 ; 92 L. T. 586. 

Damages. — The damages recoverable under the Act, either by the 
injured workman or by his representatives, cannot exceed three years' 
wages. These are calculated, not necessarily upon those received by the 
workman himself, but upon the average wages in the trade and in the 
district during the three years preceding the injury (s. 3). 

Overtime, though earned in another employment, may be taken into 
account, so long as the maximum sum allowed by the Act is not exceeded 
{Bortick V. Head, WHghtson & Co., 1886, 35 L. T. 909 ; 3 T. L. R. 103). 

" Earnings " has been decided to mean the full amount of the money, 
or other things of value to the workman, received as wages by the work- 
man from his employer, without deduction for any special expenses which, 
in order to enable him to properly do his work, the workman may have 
to incur (Ahram Coal Co. v. Southern, [1903] A. C. 306; 72 L. J. K. B. 
691; 889 L. T. 103; Midland Ely. Co. v. Sharp, [1904] A. C. 349; 73 
L. J. K B. 666; 91 L. T. 181). 

Any penalties recovered from the employer in respect of the injury 
under any other Act of Parliament must be deducted, and cannot be sued 
for if compensation is once awarded under this Act (s. 5). (See for such 
a penalty sec. 136 of the Factory Act, 1901, 1 Ed. vii. c. 22, and sec. 70 
of the Coal Mines Ptegulation Act, 1887, 50 & 51 Vict. c. 58). 

Every action under the Employers' Liability Act must be brought in 
England in the County Court. It may be removed into the High Court 
in the same way as any other County Court action is removed (s. 6). 
This is done by writ of certiorari (q.v.) obtained upon affidavit from a 
judge or master of the High Court. The usual ground of removal is that 
difficult questions of law are likely to arise at the trial which cannot be 
satisfactorily dealt with in the County Court ; but the magnitude and 
importance of the action, particularly if it be a test case, is often taken 
into account. 

Great difficulty is in practice experienced in removing these cases 
into the High Court. The judges and masters have held that the 
jurisdiction given exclusively to the County Courts must, save in very 
exceptional cases, remain there {Munday v. Thames Iromoorks Co., 1883, 
11 Q. B. D. 59 ; 52 L. J. Q. B. 119 ; 47 L. T. 351 contra ; Larhey v. Green- 
wood (unreported)). The defendant cannot get his action removed into 
the High Court by objecting to the jurisdiction of the Court under sec. 
62 of the County Courts Act, 1888, even though willing to give the 
security required by that section {B. v. Judge of tlie City of London Court, 
1885, 14 Q. B. D. 905 ; 54 L. J. Q. B. 330 ; 52 L. T. 537). It is now 
provided by the Workmen's Compensation Act, 1906, s. 14, that an 
action brought under the Employers' Liability Act in Scotland in the 
Sherifi' Court cannot be removed therefrom at all. 

Assessors may be appointed to sit with the County Court judge for 
the purpose of ascertaining the proper amount of compensation to be 
awarded (s. 6, subs. 2). (The writer has never known this done.) 

The action in the County Court is regulated generally by the pro- 
cedure obtaining in the Court, but several special rules have been framed 
and applied thereto. These rules relate to the particulars of demand to 
be filed by the plaintiff with the summons, the length of time which 
must elapse between the taking out of the summons and the return day, 
and the time before tlie return day for demanding a jury (Order 44, 
County Court Rules, 1903-1906). 



EMPLOYEES' LIABILITY 219 

An employer, within the definition of the Act, may be either a 
private person or a body of persons corporate or unincorporate (s. 8). 

Workman. — A workman is defined as a railway servant, or any 
person to whom the Employers' and Workmen Act, 1875, applies (s. 8). 
By sec. 10 of the latter Act, "workman" does not include domestic or 
menial servant, but does include "any person who, being a labourer, 
servant in husbandry, journeyman, artificer, handicraftsman, miner, or 
otlierwise engaged in manual labour, whether under twenty-one years of 
age or not, has entered into or works under a contract with an employer, 
whether express or implied, oral or in writing, and be a contract of 
service, or a contract personally to execute any work or labour." The 
manual labour referred to under the words "otherwise engaged in 
manual labour," must be ejitsclem generis with the manual labour 
exercised by the workmen included by name in the definition. Acting 
upon this interpretation, such persons as omnibus, or tram-drivers, and 
shop assistants have been held to be outside the definition in the Act 
(see Morgan v. London General Omnibus Co.y 1884, 13 Q. B. D. 832; 
53 L. J. Q. B. 352; 51 L. T. 213; Cook v. North Metropolitan Tram- 
way Co., 1887, 18 Q. B. D. 683; 56 L. J. Q. B. 309; 56 L. T. 448; 
Bond V. Lawrence, 1891, 60 L. J. M. C. 137; but the driver of a motor 
omnibus has been held to be a " workman " within the definition 
{Smith V. The Associated Omnibus Co., [1907] 1 K. B 916); see also 
Yarmouth v. France, 1888, 19 Q. B. D. 647; 57 L. J. Q. B. 7. In 
Scotland, Wilson v. Glasgow Tramivays Co., 1878, 5 E. 981; Leech v. 
Gartside, 1884, 1 T. L. E. 391). A contractor is not a workman 
(Vamplew v. Parkgate Lron and Steel Co., [1903] 1 K. B. 851; 72 
L. J. K. B. 575; 88 L. T. 756); nor a partner, though working as a 
foreman {Ellis v. Joseph Ellis & Co., [1905] 1 K. B. 324; 74 L. J. K. B. 
229; 92 L. T. 718); see also Squire v. Midland Lace Co., [1905] 2 K. B. 
448; 74 L. J. K. B. 614; 93 L. T. 29. Seamen are in terms excluded 
from the definition of the word " workmen " in the Employers' and Work- 
men Act, 1875, and are not brought within it, except for the purpose of 
that Act alone, by the subsequent Act (43 & 44 Vict. c. 16, s. 11). 
Seamen are consequently deprived of the benefits of the Employers' 
Liability Act. 

A workman may contract with his employer that the Act shall not 
apply to the contract of service between them. Such contract, when 
made, will deprive both the workman himself and his representatives of 
any right to sue {Griffiths v. Earl of Dudley, 1882, 9 Q. B. D. 357; 51 
L J. Q. B. 543). 

3. An Employer's Liability under the Workmen's Compensation 
Act, 1906, 6 Edw. vil c. 58. 

This Act, which is supplemental to, and not substituted for, the 
Employers' Liability Act, 1880, and the common law, comes into force 
on the 1st of July 1907, but except so far as it relates to references 
to medical referees and proceedings consequential thereon, does not 
apply in any case where the accident happened before the commence- 
ment of this Act (s. 16 (1)). 

The Workmen's Compensation Acts, 1897 and 1900, are repealed, but 
shall continue to apply to cases where the accident happened before the 
commencement of this Act, except to the extent to which this Act 
applies to those cases {ibid. (2)). 



220 EMPLOYERS' LIABILITY 

The new Act is a very great extension of the Workmen's Compensa- 
tion Acts of 1897 and 1900, which were tentative measures, and appHed 
to certain industries only. The present Act is of almost universal applica- 
tion. It imposes a liability upon employers of labour, not founded upon 
any breach of duty, either at common law or statutory. In effect it 
constitutes every employer an insurer of his workmen against personal 
injury by accident arising out of and in the course of the employment. 

The employer is to be an insurer against accidents which occur in the 
course of the execution of his work, and is to pay a limited compensation 
in respect of such accidents, whether or not due to want of care on his 
part or the part of his servants. 

The New Liability under the Act. 

From and after July 1, 1907, any person who has entered into, 
or works under a contract of service, or apprenticeship, with an 
employer, whether by way of manual labour, clerical work, or otherwise, 
and whether the contract is expressed or implied, is oral or in writing, 
is (with a few exceptions declared in the Act itself (see infra)) a 
" workman " entitled primd facie to receive compensation for personal 
injury, from the employer with whom he has made such contract of 
service (s. 13). Any reference to a workman who has been injured shall, 
where the w^orkman is dead, include a reference to his legal personal 
representative, or to his dependants, or other person to whom, or for 
whose benefit, compensation is payable. The persons excluded from the 
Act by its definition of the expression " workman," and who consequently 
are not entitled to receive compensation, are the following : — 

(a) Persons whose remuneration exceeds £250 a year, employed 
otherwise than by way of manual labour (s. 13). 

(b) Persons whose employment is of a casual nature, and who are 
employed otherwise than for the purposes of the employer's trade or 
business {ibid.). 

(c) Members of a police force (ibid.). A police force means a force 
to which the Police Act, 1890, or the Police (Scotland) Act, 1890, applies, 
also the City of London Police Force, the Pioyal Irish Constabulary, and 
the Dublin Metropolitan Police Force (ibid.). 

(d) Oiitworkers. — Outworkers are persons to whom articles or materials 
are given out to be made up, cleaned, washed, altered, ornamented, 
finished or repaired, or adapted for sale in their own houses, or on other 
premises not under the control or management of the person who gave 
out the materials or articles {ibid.). 

{e) Members of tlie employer's family dwellhig in his house 
{ibid.). 

(/) Persons in the naval or military service of the Crown 
(s. 9 (1)). 

It will thus be seen that every person who has entered into or works 
under a contract of service or apprenticeship with an employer is entitled 
to the benefit of tlie Act, unless his remuneration exceeds £250 a year, 
and provided he is not engaged in manual labour, or unless his employ- 
ment is casual, and not for the purposes of the employer's trade or 
business, or unless he is a member of a police force, or of the employer's 
own family dwelling with him, or an outworker, or in the naval or 
military service of the Crown. 



EMPLOYERS' LIABILITY 221 

Classes of Workmen Included. 

The following are classes of workmen, all of whom are, it is 
thought, included in the Workmen's Compensation Act, 1906. The 
Hst is not meant to be an exhaustive one. Many other descriptions of 
workers will occur to anyone who reads it, but it is believed that to 
tabulate in this form many of the principal classes of workers benefited 
by the Act may prove useful. It will at all events show the widely 
embracing scope of the Statute: — 

1. Railway servants. 

2. Workmen in factories, workshops (not domestic), mines, quarries, 
engaged in engineering works, or in the building trade. 

3. Seamen, including masters, seamen, and apprentices to the sea 
service, or sea-fishing service. 

4 Domestic and menial servants. 

5. Servants in agriculture. 

6. Managers, secretaries, clerks and assistants in banks, insurance 
and merchants' offices, shops and warehouses, and to professional men. 

7. Workmen employed on docks, harbours, quays, canals, etc., 
whether working on ships or not. 

8. Officials, clerks, and workmen in Government offices, Crown dock- 
yards, post office. 

8a. Persons employed in the private service of the Crown. 

9. Officers, clerks, and servants of municipal authorities. 

10. Servants of omnibus and tramway companies, carriers, and 
carters. 

11. Servants employed in the care or driving of horses. Coachmen,, 
motor-drivers, and others. 

12. Servants employed in the management and care of public build- 
ings, churches, chapels, meeting halls, etc. 

13. Servants permanently employed by religious, philanthropic, and 
quasi-philanthropic societies. 

14. Servants in hospitals, infirmaries, unions, nursing-homes, asylums, 
etc. 

15. Artistes and servants employed in theatres, music-halls, or other 
places of public entertainment. 

16. Servants in inns, hotels, and other licensed houses. 

17. Crown workmen, except those engaged in the naval or military 
.service of the Crown (s. 9 (1)). 

Note. — It must always be remembered that a person is not a workman 
within the Act if his salary or wages exceeds £250 a year, unless (a 
rather unusual thing) his duties are those of manual labour, and unlesa 
the contract into which he has entered is a contract of service. 

Persons not luithm the Act, or whose Position is Doubtful. — Certain 
I)ersons are excluded in the Act itself (see supra), but it must not be 
Jissumed tliat every person who works for another, and is not excluded 
hy name, is necessarily included. There are many classes of persons 
who render service for a consideration to others, and who are yet not 
[•roperly described as workmen, often because the contract or arrange- 
ment between them, though resembling it, is not in law a contract of 
service. 

The terms " employer and workmen " are comparatively new. They 
were first used by the legislature in the Employers and Workmen Act, 



222 EMPLOYERS' LIABILITY 

1875, to express the same relationship previously described as that of 
master and servant. Consequently, before the present Act can apply, 
the relation of master and servant must exist. 

"The relation of master and servant exists only between persons 
of whom the one has the order and control of the work done by the 
other. A master is one who not only prescribes to the workman the 
end of his work, but directs, or at any moment may direct, the means 
also, or, as it has been put, retains the power of controlling the work, 
and he who does work on those terms is in law a servant." 

"An independent contractor is one who undertakes to produce a 
given result, but so that in the actual execution of the work he is not 
under the order or control of the person for whom he does it, and may 
use his own discretion in things not specified beforehand." (See 
Pollock on Torts, 7th ed., p. 78). 

An independent contractor is not a workman, though his position 
may often approximate thereto, and is consequently not within the Act 
{Simmons v. Faulds, 1901, 17 T. L. R. 352; Evans v. Pemvyllt, Dinas Silica 
Co., 1901, 18 T. L. R. 58 ; Vamplew v. Farkgate Iron and Steel Co., [190.3] 
1 K. B. 851 ; 72 L. J. K. B. 575 ; 88 L. T. 756 ; MVregor v. Danshen, 1899, 
1 F. 536 ; 36 S. L. R. 393, followed in Hayden v. Dick, 1902, 5 F. 150). 

It is iDelieved many questions will arise in the construction of the 
Workmen's Compensation Act, 1906, involving, the distinction between 
a contractor and a workman. Some illustrations may make this clear. 
A builder who contracts with A. to build him a house in accordance 
with plans, for a fixed sum, is an independent contractor, but the 
bricklayer who undertakes with such contractor to do the brickwork 
•of the building, either by himself or with the assistance of others, and 
to be paid by piece-work, may be either an independent contractor or 
a servant of the chief contractor, according as the latter, as reserved or 
in fact exercises control over him in the doing of the work. 

Again, a domestic servant, permanently employed, works, subject to 
the control of the master of the house, but a servant called in on a 
specific occasion to do particular work may be a contractor or servant, 
according as it is shown, or may be inferred from the contract, that 
control as master is or is not given. 

Again, a person may contract to run on an errand or carry a bag for 
a fixed small sum, and is, whilst so engaged, probably a contractor, but 
if the same person should be engaged, say for a day, to run on errands 
or carry parcels when and as directed, he probably l3ecomes the servant 
of the person engaging him, and as such a " workman." 

(For cases as to independent contractor or workmen, see snpra.) 

A partner in a firm, though working as foreman for his own firm, is 
not a workman {Ellis v. Joseph Ellis & Co., [1905] 1 K. B. 324; 74 L. J. 
K. B. 229 ; 92 L. T. 718). 

Numerous associations exist in this country formed for religious, 
philantliropic, or scientific j)wrposes, all the members and officers of 
which are actuated by the wish to promote the objects which the 
associations aim at. Such associations are controlled by connnittees, 
councils, or boards, and services, often for remuneration, are rendered 
to the association by members and other assistants. In this way a 
relation very nearly resembling that of master and servant becomes 
established between tliem. Sometimes this may amount to the actual 
relation of master and servant, but in other cases it does not {Hall v. 
Lec8, [1904] 2 K. B. 602; 73 L. J. K. B. 819; 91 L. T. 20). A useful 



EMPLOYEES' LIABILITY 223 

test which may be applied to aid in deciding a particular case is the 
following : — Is there a contract by the alleged workman to devote his 
whole or stated time, for fixed pay, to tlie purposes of the association, 
and can the committee or council control his time and work, or is his 
time under his own control, and his payment dependent on the work 
he voluntarily does ? In the former case the relation between him and 
the committee or council is that of master and servant, in the latter it 
is not. 

Agents who are paid by commission on the amount of work they do 
or obtain, or the goods they sell for their principal, and who do not 
contract to devote any specified part of their time to the principal's 
affairs, or to obey his orders, are not workmen. On the other hand, 
travellers in the exclusive employment of one firm, and who work under 
the control of the firm, will, it is thought, be deemed workmen. Even 
travellers not exclusively employed by one firm, but representing 
several, if a certain part of their time is appropriated to each separate 
rincipal, may be considered the workmen of the principal in whose 
work they are at the time engaged. 

The difficulty of determining the position of a person who works for 
several masters is not great, if the period of each service is distinct, no 
matter how quickly they may succeed one another. A greater compli- 
cation arises where a person has undertaken duties towards several 
'•thers which are not incompatible with being performed at the same 
:iue. 

nius. — A charwoman undertaking with the various tenants of offices 
in one large building to keep them clean and, as far as her duties to the 
thers permits, to obey the orders of each tenant. She becomes, it is 
relieved, the servant of each tenant, who incurs liability under the Act 
whilst she is discharging her duty towards him. On the other hand, 
the porter employed on the premises, and paid by the tenants to work 
the lift, in the interests of all the tenants and to look after the hall, and 
to keep improper persons away, owes a duty to all the employers con- 
temporaneously. If such a person is injured, say by falling down the 
ift, or endeavouring to eject an unwelcome visitor, it becomes a matter 
't the utmost difficulty to say in whose service lie was injured. 

Status of Workman. — In the Act of 1897 " workman " was declared 
to "include every person who is engaged in an employment to which 
!iis Act applies, whether by way of manual labour or otherwise. . . ." 

Notwithstanding these wide words, the Courts held that its ordinary 
;nd colloquial meaning must be given to the word "workman," and 
xcluded from the Act those who, from their status, would not be so 
i'iscribed. Thus, a manager of a coal mine receiving £400 a year, house 
ud allowances, was held not to be a workman (Simpson v. Ubbw Vale 
^teel and Iron Co., [1905] 1 K. B. 453 ; 74 L. J. K. B. 347 ; 92 L. T. 282. 
A master of science who worked in a chemical works, partly experi- 
menting and partly in manual labour {Bagnall v. Levinstein, 1907, 
1 K. B. 531 ; 23 T. L. R 165). 

The question arises whether the term "workman" in the present 
Act will be construed in the same manner as in the last. The writer 
helieves that it will not, and that no person who falls within the express 
words of the definition will be held to be excluded, on the ground that 
lie does not belong to a class who would ordinarily be called " workmen." 
^till there is much to be said in favour of some limitation of the 
xpression founded on status and duties. 



224 EMPLOYEES' LIABILITY 

Seamen. For the first time the principle of workmen's compensation 

is extended to masters, seamen, and apprentices to the sea service, and 
apprentices to the sea-fishing service (for provisions as to apprenticeship 
to the sea service, see sees. 105-109, Merchant Shipping Act, 1894), 
provided they are workmen within the meaning of the Act, and members 
of the crew of any ship registered in the United Kingdom, or of any other 
British ship or vessel, of which the owner, or one of the owners, or 
managing owner, or manager, resides or has his principal place of business 
in the United Kingdom (s. 7 (1)). 

The only persons excluded are persons who are not workmen within 
the Act at all (see ante, pp. 221-223), and such members of the crew of 
a fishing vessel as are remunerated by shares in the profits, or the gross 
earnings of the working of such vessel (s. 7 (2)). 

Pilots, to whom Part X. of the Merchant Shipping Act, 1894, 57 & 
58 Vict. c. 60, applies, are included, as though a pilot were a seaman and 
a member of the crew (s. 7 (3)). 

Part X. of the Merchant Shipping Act, 1894, extends to the United 
Kingdom and the Isle of Man only, but applies to all ships, British and 
foreign. 

It has been suggested that in this case liability is incurred to the 
pilot by a foreign ship in British waters, but it is believed this is not 
the case, for the pilot must be employed " on such ship as aforesaid," 
i.e. it is believed a British ship, and becomes " a member of the crew." 
A member of the crew of a foreign ship is not within the Act. 

"Pilot" means any person, not belonging to a ship who has the 
conduct thereof (M. S. Act, 1894, s. 742). 

" Ship," " vessel," " seaman," and " port " have the same meanings as 
in the Merchant Shipping Act, 1894. Sec. 13 of W. C. Act, 1906. 
" Vessel " includes any ship, or boat, or any other description of vessel 
used in navigation (M. S. Act, 1894, s. 742). 

" Ship " includes every description of vessel used in navigation, not 
propelled by oars (ibid.). 

" Master " includes every person (except a pilot) having command or 
charge of any ship (ibid.). 

" Seaman " includes every person (except masters, pilots, and ap- 
prentices duly indentured and registered) employed or engaged in any 
capacity on board any ship (ibid.). 

" Manager," in relation to a ship, means the ship's husband, or other 
person to whom the management of the ship is entrusted by or on 
behalf of the owner (sec. 13, W. C. Act, 1906). 

It must be noticed that the Workmen's Compensation Act, 1906, only 
applies to British ships registered in the United Kingdom, or British 
ships or vessels of which the owner, managing owner, or manager resides, 
or has his principal place of business, in the United Kingdom. 

Foreign ships, although in British waters, are therefore not within 
the Act, though foreign seamen, such as Lascars, on British vessels are 
included. 

By sec. 3 of the Merchant Shipping Act, 1894, the following ships 
are exempted from registry under this Act : — 

1. Ships not exceeding fifteen tons burden employed solely in navi- 
gation on the rivers or coasts of the United Kingdom, or on the rivers 
or coasts of some British possession within which the managing owners 
of the ships are resident. 

2. Ships not exceeding thirty tons burden, and not having a whole or 



EMPLOYEES' LIABILITY 225 

fixed deck, and employed solely in fishing or trading coastwise on the shores 
of Newfoundland or parts adjacent thereto, or in the Gulf of St. Lawrence, 
or on such portions of the coasts of Canada as lie bordering on that gulf. 

But registration is only one test as to whether or not the Act applies. 
Any person employed in any capacity on any other British ship or vessel 
(though unregistered), if the owner, managing owner, or manager resides 
or has his principal place of business in the United Kingdom, becomes a 
seaman within the Act. 

Though vessels propelled by oars are excluded from the definition of 
" ship " in the Merchant Shipping Act, there is no such exclusion in 
the definition of "vessel." The test in this definition is whether the 
vessel or boat is used in navigation. The definition is quite general, 
and under such a general definition in special and local Acts " barges '* 
and small boats propelled by oars have been held included in the term 
"vessel." See B. v. Boivyer, 1831, 4 C. & P. 559; Tennant v. Swansea 
HarhouT Trustees, 1886, 3 T. L. E. 128 ; Gapp v. Bond, 1887, 19 Q. B. D. 
200. It would therefore appear that barges, either with or without 
sails, and other small boats engaged in navigation are " vessels," and the 
workmen employed thereon " seamen," for the purposes of the Workmen's 
Compensation Act, 1906. 

A hopper barge with a rudder, and constructed to be towed, was 
held within the description " ship," even as defined in the Merchant Ship- 
ping Act, 1854 {The Mac, 1882, 7 P. D. 126). 

It is believed that the masters and crews of all pleasure yachts, 
steam launches, etc., are within the Workmen's Compensation Act, 
1906, as "seamen." 

Special Brovisions as to Seamen. — Where the accident happens and 
the incapacity commences on board the ship it is not necessary to give 
notice of accident, but the notice of accident and the claim for compen^ 
sation may (except in the case of the master) be served on the master 
as if he was employer (s. 7 (1) (a)). 

In the case of death the claim can be made at any time within six 
months after the news of the death has been received by the claimant 

(8.7(1)(^)). 

Sees. 691 and 695 of the Merchant Shipping Act, 1894, apply. 
These sections relate to the admissibility in evidence of depositions when 
a witness cannot be produced, and of documents declared by the Act to 
be admissible in evidence. Where the injured seaman is discharged 
or left behind, in a British possession or foreign country, depositions 
respecting the circumstances and nature of the injury may be taken by 
any judge or magistrate in the British possession, and by any British 
consular officer in the foreign country, and transmitted by such person 
to the Board of Trade, and such depositions or certified copies thereof 
shall, in proceedings for enforcing the claim, be admissible in evidence 
as provided by the above sections of the Merchant Shipping Act, 1894. 
See sec. 7 (1) (c). 

In case of death, if no dependants are left, no compensation is pay- 
able if the owner of the ship is liable to pay the expenses of burial 
under the Merchant Shipping Act, 1894, s. 7 (1) (d). 

By sec. 207 (1) of the Merchant Shipping Act, 1894, if a master, 
seaman, or apprentice receives any hurt or injury in the service of his 
ship, which results in death, the expenses (if any) of his burial shall be 
defrayed by the owner of the ship without any deduction on that account 
from his wages. 

VOL. v. 15 



226 EMPLOYERS' LIABILITY 

Compensation is not payable whilst the owner of the ship is liable 
to defray the expenses of maintenance of the injured master, seaman, 
or apprentice (s. 7 (1) (e)). 

By sec. 207 (1) of the Merchant Shipping Act, the owner is liable to 
defray the expenses of maintenance, if the hurt or injury has been 
occasioned in the service of the ship. 

Compensation must be paid in full, notwithstanding sec. 503 (1) of 
the Mercliant Shipping Act, 1894, which section limits the liabihty of 
the owner (if the occurrence has taken place without his actual fault, 
or privity), in respect of loss of life or personal injury together with 
loss of or damage to vessels, goods, etc., to £15 for each ton of the ship's 
tonnage. Where, however, a shipowner has paid compensation and 
claims indemnity under sec. 6 of the Workmen's Compensation Act, 
1906, from another shipowner, s. 503 of the Merchant Shipping Act 
does apply, and limits the liability of the shipowner from whom the 
indemnity is claimed (s. 7 (1) (/)). 

Loss of Skip. — Where, in a claim for compensation, evidence is forth- 
coming either from the Registrar- General of Shipping and Seamen, or 
otherwise, that a ship left a port of departure twelve months or more 
before the commencement of proceedings by a dependant to recover 
compensation, in respect of the death of master, seaman, or apprentice, 
the ship shall, unless it has been heard of within twelve months of its 
departure, be deemed to have been lost with all hands on board, either 
immediately after the time it was last heard of, or at such later time as 
the Court hearing the case may think probable. A list of the crew 
produced from the custody of the Registrar- General of Shipping and 
Seamen, or the Board of Trade, delivered under the Merchant Shipping 
Act at the last departure of the ship from the United Kingdom, or a 
certificate purporthig to come from a consular or other public officer, at 
any port out of the United Kingdom, stating that certain seamen and 
apprentices were shipped from that port, is (in the absence of proof to 
the contrary) sufficient proof that the seamen and apprentices therein 
named were on board at the time of the loss (ibid. (g)). 

Proceedings to recover compensation by dependants of master, sea- 
men, and apprentices lost with their ship, may be commenced within 
eighteen months of the date at which the ship (as above stated) is 
deemed to have been lost with all hands. This is the effect of sec. 7 
(1) (g) of the Workmen's Compensation Act, 1906, and sees. 174 (2) and 
(3) of the Merchant Shipping Act, 1894. 

Detention of Ships. — A judge of any Court of Record in England or 
Ireland may, upon it being shown to him that the owners of a ship are 
probably liable as such to pay compensation under the Act, and the 
ship is found in any port or river of England or Ireland, or within three 
miles of the coast thereof, and that none of the owners of such ship 
reside in the United Kingdom, issue an order directed to any officer of 
customs, or other officer named by the judge, requiring him to detain 
the ship until such time as the owners, agent, master, or consignee shall 
have paid the compensation or given security, to be approved by the 
judge, to abide the event of any proceedings brought to recover such 
comj)en8ation, and to pay such compensation and costs as may be 
awarded in such proceedings (s. 11 (1)). 

The i)er8on giving the security is to be made defendant- (qu. respon- 
dent), and the production of the order of the judge relating to the 
security is to be conclusive evidence of the liability of the defendant to 



EMPLOYERS' LIABILITY 



227 



the proceeding {ibid. (2)). Sec. 692 of the Merchant Shipping Act, 1894, 
is applied to the detention of ships under this Act {ibid. (3)). 

That section makes provision for any ship which is to be detained, 
being detained by a commissioned officer on full pay, in the naval or 
military service of the Crown, or any officer of the Board of Trade, or 
any officer of customs, or any British consular officer, and imposes a 
fine on the owner, master, or other person who sends the ship to sea 
after notice of such order of detention and before the ship is properly 
released (s. 692 (1)). 

Clause 2 of the same section imposes a fine and expenses on the 
owner and master of the ship, which takes to sea any officer on board 
ill the execution of his duty, authorised to detain the ship. Clause 3 
allows an officer of customs, where there is an order for detention, to 
refuse to clear the ship outwards or to grant it a transire. 

If the owner of a ship is a corporation, such corporation shall, for the 
purposes of detention under sec. 11 of the Workmen's Compensation Act, 
1906, be deemed to reside in the United Kingdom, if it has an office in 
the United Kingdom at which service of writs can be effected. 

Application of Act to Certain Industrial Diseases. 

The extension by this Act of the principle of workmen's compensation 
to industrial disease is a new departure. Disease, though contracted 
accidentally, is not an "accident" in the ordinary acceptation of the 
term, though the House of Lords, under the Act of 1897, decided that a 
workman who accidentally contracted anthrax had sustained personal 
injury by accident, within the meaning of that statute {Brintons, Ltd., 
x'.Turvey, [1905] A. C. 230 ; 74 L. J. K. B. 474; 92 L. T. 578). 

The industrial diseases included in the Act of 1906 are the following : — 

Third Schedule. 



Description of Disease. 



Description of Process. 



Anthrax ..... 
Lead poisoning or its sequela) . 
Mercury poisoning or its sequelae 



Phosphorus poisoning or its 
sequelae .... 



Arsenic poisoning or its sequelae 



Ankylostomiasis 



Handling of wool, hair, bristles, hides, 
and skins. 

Any process involving the use of lead 
or its preparations or compounds. 

Any process involving the use of 
mercury or its preparations or com- 
pounds. 

Any process involving the use of 
phosphorus or its preparations or 
compounds. 

Any process involving the use of 
arsenic or its preparations or com- 
pounds. 

Mining. 



"Where regulations or special rules made under any Act of Parliament 
for the protection of persons employed in any industry against the risk 
^f contracting lead poisoning require some or all of the persons employed 



228 EMPLOYEES' LIABILITY 

in certain processes specified in the regulations or special rules to be 
periodically examined by a certifying or other surgeon, then, in the appli- 
cation of this schedule to that industry, the expression " process " shall, 
unless the Secretary of State otherwise directs, include only the processes 
named." 

}fote. It will be observed from the above that, in the application 

of the Act to lead poisoning or its sequelse, it is only workmen 
enc'aged in any process of the trade who, or some of whom, are 
subject by statutory regulations or statutory special rules to periodical 
examination by a certifying or other surgeon, to whom the protection 
of the Act is given. (In most lead factories, and factories in which 
lead is used in tinning or enamelling, periodical medical inspections 
are required; see Eedgrave's Factory Acts (10th ed.) and Euegg and 
Mossop's Law of Factories and Worhsho2os, special rules, pp. 517 et seq.) 

If the certifying surgeon for the district, under the Factory Act, 
1901, certifies that a workman is suffering from any of the diseases 
in the third schedule, and is thereby disabled from earning full wages 
at the work at which he was employed ; or 

A workman, on account of having contracted any of these diseases, 
is suspended from his usual employment under any special rules or 
regulations made under the Factory Acts ; or 

The death of a workman is caused by any of the above diseases, 
and the disease is due to the nature of any employment in which the 
workman was employed, at any time within twelve months previous 
to the date of the disablement or suspension, whether under one or 
more employers, he or his dependants are entitled to compensation 
under the Act as if the disease or suspension were a personal injury 
by accident arising out of and in the course of the employment 
(8. 8 (1)). 

The Secretary of State may, by order, extend this part of the Act 
to other diseases and processes, and to injuries due to the nature of 
any employment specified in the order, not being injuries by accident, 
either with or without modifications (s. 8 (6)). 

Note. — The Secretary of State is at the present time obtaining 
evidence by means of a Departmental Committee with a view of 
bringing other industrial diseases within the Act. 

Notice of all the diseases in the third schedule, except " ankylos- 
tomiasis," is, by sec. 73 of the Factory Act, 1901, required to be given 
to the certifying surgeon for the district, and by any medical practi- 
tioner attending the sufferer, to the Chief Inspector of Factories, when 
tlie disease has been contracted in a factory or workshop. As to 
ankylostomiasis, this is a miner's disease — often called miners' anama 
— and does not generally fall within the province of the certifyinjj 
surgeons under the Factory Act. , 

If the workman has, at the time of entering the employment, 
wilfully and falsely represented in writing that he has not previous!} 
Buttered from the disease, compensation shall not be payable, i.e. neithei 
he nor his dependants are entitled to compensation in respect of thti 
consecjuences of such disease (s. 8 (1) (&)). j 

If the workman at, or immediately before, the date of disablementj 
or suspension was employed in any process mentioned in the seconi!; 
colunm of the third schedule (sujn'a), and the disease contracted is tlu: 
disease in the first colunm set opposite the description of the processj 
the disease is to be deemed to have been due to the nature of that 



EMPLOYERS' LIABILITY 229 

employment, unless the certifying surgeon certifies, or the employer 
proves, the contrary (s. 8 (2)). 

Time when Bight to Compensation Accrues. — The disablement or sus- 
pension is to be treated as the happening of the accident (s. 8 (1) {a)). 

The weekly compensation therefore commences after the expiration 
'of one week from the date of the disablement or suspension (s. 1) (2) {a)) ; 
but if the incapacity lasts less than two weeks no compensation is pay- 
,able in respect of the first week (s. 1 (h)). If the incapacity lasts more 
than two weeks, compensation is payable from the time of the accident. 
The Employer from ivhom Compensation is Becoverable. — Compensation 
jis recoverable from the employer who last employed the workman, during 
jthe twelve months before the date of the disablement or suspension, in 
[the employment to the nature of which the disease is due ; but 
I (i.) The workman or his dependants must (if required) furnish the 
(employer with such information as he or they may possess as to names 
iand addresses of all other employers who employed him in the employ- 
,ment during the preceding twelve months. 

(ii.) If such employer alleges that the disease was contracted in the 
iiployment of some other employer, and not whilst the workman was 
(in his employment, he may join such other employer as a party to the 
arbitration; and if the allegation turns out to be correct, the other 
j employer shall be the employer from whom the compensation is 
recoverable. 

(iii.) If the disease is one contracted by a gradual process, any other 

(employers who employed the workman during the said twelve months 

in employment, to the nature of which the disease is due, are liable 

make contributions to the employer from whom compensation is 

Loverable. Such contributions, in default of agreement, may be 

termined in the arbitration proceedings brought by the workman or 

uis dependants under the Act. 

If the workman or his dependants do not furnish particulars of 

; names and addresses of former employers, or if such information is not 

sufficient to enable the employer to join another employer with him in 

ihe arbitration proceedings, then, if the employer can prove that the 

'isease was not contracted in his employment, he is not liable to pay 

mpensation (s. 8 (1) (c)). 

It is clear from the above clause, read in conjunction with clause 2 
: the same section, that the onus is upon the last employer where he 
Jias employed the workman in a process, set opposite to the disease in 
the third schedule, to prove that it was contracted in another employ- 
ment. Primd facie the compensation is due from the last employer. 
i'' he cannot shift this burden on to the shoulders of a previous 
uployer, he must bear it. If the disease is one as to which it is 
ssible to ascertain with reasonable certainty the time at which it 
IS contracted, the last employer may escape liability by showing that 
was contracted within the preceding year in the employment of another 
: uployer. In such case such other employer is alone responsible. 

If the employer from whom the compensation is claimed proves 

'^lat the disease was contracted by gradual process, then he is entitled 

' contribution from the workman's other employers during the said 

''vious twelve months, provided they have employed the man in like 

Iiployment or processes. 

The Act contains no provision as to what such contribution should 
', or upon what principle it is to be arrived at. 



230 EMPLOYEES' LIABILITY 

In every case an employer, who has employed the workman before 
the twelve months alluded to, escapes altogether, no matter how long 
he may have employed him, and though it is evident that the disease 
was originally contracted in his service. 

SpecUd Conditions as to Notice, Compenscdion, Time of Disablement, 
etc — Notice of death, disablement, or suspension is to be given to the 
last employer who within the twelve months employed the workman in 
the employment to the nature of which the disease is due. It may 
be given although the workman has voluntarily left the employment 
(8. 8 (1) (e)). 

Compensation is to be calculated with reference to the earnings of 
the workman under such last employer (s. 8 (1) (d)). 

Either the employer or the workman may appeal against the decision 
of a certifying or other surgeon, giving or refusing to give a certificate 
of disablement, or suspending or refusing to suspend a workman for the 
purposes of this section. 

The appeal is to a medical referee appointed by the Secretary of 
State, not necessarily the medical referee appointed by the Secretary 
of State in virtue of sec. 10 of the Act, for the district, but an 
expert with regard to the disease which the workman is said to have 
contracted. His decison is final (s. 8 (1) (/)). 

The date of disablement is to be such date as the certifying surgeon 
certifies as being the time at which the disablement commenced. If he 
is unable to fix the date, it is to be date of his certificate; but 

(a) Where a medical referee allows an appeal against a refusal by 
a certifying surgeon to give a certificate of disablement, the date of 
disablement shall be such date as the medical referee may determine ; 

(b) Where the workman dies without having got a certificate of 
disablement, or is at the time of death not in receipt of a weekly 
compensation, it shall be the date of death. 

The Secretary of State is given power to make rules regulating the 
duties and fees of certifying and other surgeons (including dentists) 
under this section, and may, subject to conditions or not, invest any 
medical practitioner appointed by him with the powers and duties of a 
certifying surgeon. 

The right of a workman to recover compensation in respect of a 
disease not mentioned in the third schedule is preserved to him, pro- 
vided such disease is a personal injury by accident within the meaning 
of the Act (see Brintons, Ltd., v. Tiirvey, ante, p. 227). 

Tower is given to the Secretary of State to compel employers engaged 
in any of the industries in the third schedule to insure in a mutual 
insurance company or society, which has been formed for insuring a 
trade against the risks under sec. 8 of the Act, in which the majority of 
the employers in the industry are insured. 

This can only be effected by Provisional Order, confirmed by Parlia- 
ment (see 8. 8 (7), (8)). 

It must be remembered that under sec. 8 death or incapacity caused 
by disease is deemed to be "accident." The other parts of tlie Act 
tlierefore whicli apply to accidents (save in so far as they are inconsistent 
with the provisions of the special section) apply likewise to claims for 
comjiensation arising from disease, e.g. serious and wilful misconduct, 
failure to make the claim within six months, etc. 



EMPLOYERS' LIABILITY 231 

Persons to Receive and Persons to Pay the Compensation. 

In non-Fatal Injuries. — In injuries not resulting in death it is the 
workman himself who receives the compensation, if he is under no legal 
disability (Sched. I. (7)). If a workman receiving a weekly payment 
ceases to reside in the United Kingdom he ceases to be entitled to 
receive such weekly payment, unless the medical referee certifies that 
the incapacity resulting from the injury is likely to be permanent. In 
this case the workman receives the compensation quarterly so long as 
he proves (in the manner and at such intervals as may be prescribed by 
rules of Court) his identity and the continuance of his incapacity (ibid.). 

In Case of Death. — By the Act of 1897 compensation in case of death 
was made to the legal personal representative of the workman, or if 
he had no legal personal representative, to or for the benefit of his 
dependants (Sched. I. (4)). Now, in case of death, the compensation, 
unless otherwise ordered, is to be paid into Court, and to be applied for 
the benefit of the dependants (Sched. I. (5)). 

Dependants. — For the purposes of the Act " dependants " means the 
wife or husband, father, mother, grandfather, grandmother, step-father, 
step -mother, son, daughter, grandson, granddaughter, step -son, step- 
daughter, brother, sister, half-brother, half-sister ; and where the work- 
man, being the parent of an illegitimate child, leaves such a child so 
dependent upon his earnings, or being an illegitimate child, leaves a 
parent or grandparent so dependent upon his earnings, the term 
"dependant" shall include such an illegitimate child and parent or 
grandparent respectively (s. 13). 

Illegitimate children and grandchildren, and the parents and grand- 
parents of an illegitimate child, are for the first time included in the 
present Act, as are also brothers, sisters, half-brothers, half-sisters. 

In England the only persons entitled as dependants in the Act of 
1897 were such persons as were entitled to sue under the Fatal Accidents 
Act, 1846, 9 & 10 Vict. c. 93, as amended by 27 & 28 Vict. c. 95. 

The definition of "dependants" now applies to the whole of the 
United Kingdom. Previously in Scotland the term meant such persons 
as, by the law of Scotland, were entitled to sue for damages for " solatium " 
for the death of a relative. 

In every case it is necessary that the dependant or dependants 
claiming compensation, should be dependent wholly or in part upon 
the earnings of the workman at the time of his death, or would be so 
dependent but for the incapacity due to the accident (s. 13). 

Many decisions were given under the Act of 1897 as to what con- 
stituted " dependency," and as to the meaning of " dependency at the 
time of death." 

It was contended that the expression must be construed as meaning 
some dependency for the necessaries of life, according to the condition 
in hfe of the parties, and that when the claimant was in a position to 
obtain for himself the necessaries of life the Act did not apply. See 
Himmom v. White, [1899] 1 Q. B. 1005 ; 68 L. J. Q. B. 507 ; 80 L. T. 344. 
This contention was finally overruled by the House of Lords in the case 
of The Main Colliery Co., Ltd., v. Davies, [1900] A. C. 358 ; 69 L. J. Q. B. 
755; 80 L. T. 674; 16 T. L. R. 460. In this case the father of a boy, 
who had been killed in a mine, was awarded compensation under the 
Act upon the ground that he was partially dependent on his son's 
earnings. The boy lived at home and gave his wages, eight shillings a 



232 EMPLOYERS' LIABILITY 

week, to his mother. The father was earning the full wages of a miner, 
and other members of the family living at home were earning wages. 
The Lord Chancellor, in giving judgment, said: "I decline to assume 
that the legislature has contemplated a particular 'standard' — I am 
not quite certain what it means, Jjut I am quite certain that no human 
intellect would be able to ascertain exactly what the standard was, if 
one had to deal with such a question — a standard dependent upon what 
was the ordinary course of expenditure in the neighbourhood, and in 
the class in which the man lived. What the family was in fact earning, 
what the family was in fact spending for the purposes of its maintain- 
ance as a family, seems to me to be the only thing which the County 
Court judge could properly regard, and, that being the thing which 
the County Court judge ought to regard, I think in this case he has 
regarded it." 

The same principle was followed in Howells v. Vivian, 1901, 85 L. T. 
529 ; 18 T. L. R 36 ; and French v. Undemuood, 1903, 19 T. L. R. 416. 

In Scotland, however, the principle laid down by the House of Lords 
does not seem to have been entirely followed. In Sir William Arrol 
v. Kelly, 7 F. 906 ; 42 S. L. R. 695, a father was refused compensation 
for his son's death, though he received a part of his wages, on the ground 
that his (the father's) earnings were sufficient to render him independent 
of outside assistance. 

''Dependent at Time of Death" — Both the total and the partial 
dependency upon the workman whose death gives rise to the claim, 
must exist at the time of the death. The time of the death can alone 
be regarded in ascertaining whether dependency does or does not exist. 
This is a question of fact, but there is some authority for the proposition 
that where, at the time of death, a legal duty to maintain existed, the 
fact that the legal duty was neglected by the person on whom it rested 
does not destroy dependency within the statute ; at all events, where 
the persons towards whom the duty exists have not released the obliga- 
tion. See Coulthard v. Consett Iron and Steel Co., [1905] 2 K. B. 869; 
75 L. J. K. B. 60 ; 93 L. T. 756 ; 22 T. L. R. 25. In Scotland, Cunning- 
ham v. McGregor & Co., 1901, 3 F. 775; 38 S. L. R. 574; S7ieddo^i v. 
Addie & Sons' Collieries, 1904, 6 F. 992 ; 41 S. L. R. 826 ; Baird & Co. 
V. Birsztan, 1906, 8 F. 438 ; 43 S. L. R. 300. In Ireland, Queen v. Clarke, 
[1906] 2 Ir. R. 135. 

Ikit where there is no direct legal obligation to support, and the 
alleged dependant was not in fact being supported at the time of death, 
no (compensation is recoverable {Bees v. Penrikyher Navigation Colliery 
Co., [1903] 1 K. B. 259; 72 L. J. K B. 85; 87 L. T. 661; Sir William 
Arrul v. Kelly, 1905, 7 F. 906 ; 42 S. L. R. 695 ; Turners, Ltd., v. WhUe- 
field, 1904, 6 F. 822; 41 S. L. R. 631; Bohert Addie & Sons' Collicnes 
V. Trainer, 1904, 7 F. 115 ; 42 S. L. R. 85). 

Neither in England or Scotland were illegitimate children able to 
claim as dependants of their natural parents, or the natural parents as 
dependants of their illegitimate children; but this is now altered by 
the Act of 1906. The term "children" used in an Act of Parliament 
generally means legitimate children {Dickinson v. N.-E. Bly. Co., 1863, 
2 H. «& C. 735; see also Clarke v. Carfin Coal Co., [1891] A. C. 412; 
Clement v. Bell & Sons, 1899, 1 F. 924; 36 S. L. R. 725). 

It lias been held in Scotland that no person can claim as a partial 
dejKjndant upon the earnings of a deceased workman if, at the time of 
the deatli, there exists a person wholly dependent (Fagan v. 3hirdoch, 



EMPLOYEES' LIABILITY 233 

1899, 1 F. 1179; 36 S. L. E. 921). This was no doubt correct, but it 
is now altered by clause 8 of the first schedule of the new Act, which 
provides that "where there are both total and partial dependants 
nothing in this schedule shall be construed as preventing the compen- 
sation being allotted partly to the total and partly to the partial 
dependants ; " also that a mother or other relative cannot claim com- 
pensation if the father is living (AitJcen v. Gmirlay, 1903, 5 F. 585; 
Bao^rett v. North British Ely. Co., 1899, 1 F. 1139; 36 S. L. E. 874; 
Camjjhell v. Barclay, Curie & Co., 1904, 6 F. 371 ; 41 S. L. E. 289). It 
is doubtful whether these last-named Scottish decisions will be adhered 
to, now that a right to compensation is given to the members of the 
family named in the Act. 

Although the right to receive compensation is largely a personal 
right, the Court of Appeal in England has decided that where a claim 
is made by a dependant who dies before arbitration proceedings are 
commenced, his right to recover the compensation passes to the 
personal representative of such dependant, who can recover compen- 
sation for the estate {Darlington v. Roscoe & Co., 1906, 23 T. L. E. 167). 
The Court of Appeal in Ireland on similar facts (save that the depen- 
dant had made no claim in her lifetime) gave a different decision 
{a Donovan v. Cameron, Swan & Co., [1901] 2 Ir. L. E. 633 ; 34 Jr. L. T. 
199). Money or property coming to a dependant as a direct result of 
the death of the workman, cannot be taken into account, either as a 
substitute for, or in reduction of, the compensation given by the Act 
{Pryce v. Fenrihjber Navigaiion Colliery Co., Ltd., [1902] 1 K. B. 221 ; 71 
L J. K. B. 192 ; 85 L. T. 477). 

Employer. — It is the employer in all cases who has to pay the 
compensation. " Employer includes any body of persons corporate or 
unincorporate, and the legal personal representative of a deceased 
employer, and where the services of a workman are temporarily lent 
or let on hire to another person by the person with whom the workman 
has entered into a contract of service or apprenticeship, the latter shall, 
for the purposes of this Act, be deemed to continue to be the employer 
of the workman whilst he is working for that other person " (s. 13). 

The above provision as to a workman temporarily lent or let on hire 
to another is new, and somewhat in conflict with the principle of law 
governing such a relationship. The general rule is, that if the control 
of the workman lent or let on hire is parted with by the general 
employer, and assumed by the temporary employer, the latter becomes 
in law the employer of the workman. See Roitrke v. White Moss Colliery 
Co., 1876, 2 C. P. D. 205 ; Donovan v. Lang, Wharton, & Co., [1893] 
1 Q. B. 629 ; contra, Moore v. Palmer, 1886, 2 T. L. E. 781 ; Jones v. 
Liverpool Corporation, 1885, 14 Q. B. D. 890 ; Claridge v. Union Steam- 
ship Co., [1894] A. C. 185; Deivar v. Tasker, 1906, 95 L. T. 87; 22 
T. L E. 303. 

For the purposes of the present Act, if the lending or hiring is 
temporary, notwithstanding that control has been parted with, the 
general employer retains responsibility, and no responsibility rests 
upon the temporary employer. 

Local Authority as Employer. — "The exercise and performance of 
the powers and duties of a local or other public authority shall, for 
the purposes of this Act, be treated as the trade or business of the 
authority " (s. 13). 

It is the employer (save in an exceptional case of bankruptcy) who 



234 EMPLOYEES' LIABILITY 

has to pay the compensation. The old term "undertaker," which 
occasioned some difficulty in the Act of 1897, has now disappeared. 

Under the Employers' Liability Act, 1880, the death of the em- 
ployer before judgment deprived the injured workman of his cause of 
action by virtue of the application of the maxim, Actio personalis moritur 
cum persond. 

In the present Act " employer " includes the legal personal repre- 
sentative of a deceased employer. Consequently the claim for compen- 
sation does not fail or abate in consequence of the death of the employer 
subsequently to the injury in respect of which the claim is made (s. 13). 

Personal Injury by Accident. 

The personal injury, to give a right to compensation, must arise from 
accident (s. 1 (1)). 

Certain diseases are now to be deemed " accident " (see ante, p. 227). 

"Accident" may be defined as "some unforeseen or unexpected 
event which takes place without design." 

Many decisions were pronounced under the Act of 1897 in which 
the wording was the same, on the words " personal injury by accident." 

Somewhat unfortunately the Court of Appeal based some of its 
earlier decisions upon a rather wide interpretation which it gave to a 
dictum pronounced by Lord Halsbury in the case of Hamilton, Fraser & 
Co. V. Pandorf, [1887] 12 A. C. 518, where he said : " I think the idea of 
something fortuitous and unexpected is involved in both words, peril or 
accident." This, and a strong desire to treat the question as one of 
fact, led to rather contradictory decisions. 

An arbitrator was supported who held that a workman who strained 
himself in turning the wheel of his machine, and whose body was 
physically unsound, had not met with death by accident {Hensey v. 
White, [1900] 1 Q. B. 481 ; 69 L. J. Q. B. 188 ; 81 L. T. 767); another, 
who held that the poisoning of a blistered finger by red lead, which the 
workman had to use in the course of his employment, was not personal 
injury caused by accident ( Walker v. Lilleshall Coal Co., [1900] 1 Q. B. 
488 ; 69 L. J. Q. B. 192 ; 81 L. T. 769 ; another, who held that a strain 
occasioned to a workman in trying to lift planks of timber, which were 
more or less frozen together, was personal injury caused by accident 
(Timmins v. The Leeds Forge Co., 1900, 83 L. T. 130; 16 T. L. K. 521 (a 
case difficult to reconcile with Hensey v. White, supra)); another, who held 
that a strain occasioned to a female worker in carrying heavy boxes in 
the course of her work, and who was suffering at the time from prolapsus 
uteri, was not personal injury caused by accident {Roper v. Greemvoody 
1900, 83 L. T. 471); another, who held that a laceration of the muscles 
of his back by a workman, caused by his giving a jerk to a heavy beam 
of a loom which he was carrying, in order to get it into a condition of 
equilibrium on his shoulder, was a personal injury caused by accident 
{Boardman v. Scott, [1902] 1 K. B. 43 ; 71 L. J. K. B. 3 ; 85 L. T. 502); 
and another, who held that the intrusion of a piece of coal under the 
skin of tlie knee of a coal miner, who had to work in the mine on his 
knees, was a personal injury caused by accident (Thompson v. Ashington 
Coal Co., 84 L. T. 412 ; 17 T. L. li. 345). 

In 1903 the question what is an "accident" reached the House of 
Ix)rds, in Fenton v. Thorley, [1903] A. C. 443 ; 72 L. J. K. B. 787 ; 89 L. T. 
314 ; 19 T. L. R. 684. A workman, whilst turning a wheel which was 



I 



EMPLOYERS' LIABILITY 235 

somewhat hard to turn, miscalculated his strength, over-exerted himself, 
and ruptured himself. The House of Lords unanimously declared that 
this was personal injury by accident, and disapproved some of the 
decisions cited above. The judgments in this case lay down the meaning 
of the expression " accident," and the principles to be applied to deter- 
mine whether a given occurrence is an accident. 

" The w^ord ' accident ' is used in the popular and ordinary sense of 
the word, as denoting unlooked-for mishap, or an untoward event which 
is not expected or designed " per Lord Macnaghten ; or as meaning " Any 
unexpected personal injury resulting to the workman in the course of his 
employment from any unlooked-for mishap or occurrence," ^cr Lord Shand. 

This case is at the present time the governing decision. 

The House of Lords has declared anthrax, accidentally contracted by 
a workman in the course of his work, to be "accident" within the 
meaning of the Act {Brintons, Ltd., v. Turvey, ante, p. 227) ; but gradual 
lead poisoning is not "accident" {Steel v. Cammell, Laird & Co., [1905] 
2 K. B. 232; 74 L. J. K. B. 610; 93 L. T. 357); neither are the miners' 
diseases, known as " beat hand " or " beat knee " (Marshall v. Uast 
Holywell Coal Co., and Gamiey v. Backivorth Collieries, 1905, 93 L. T. 
360 ; 21 T. L. E. 494). 

A workman, killed by lightning whilst working in a position by 
which the risk of being struck was increased, was held to have been 
killed by accident {Andreiv v. Failsiuorth L^idustrial Society, Ltd., [1904] 
2 K. B. 32 ; 73 L. J. K B. 510 ; 90 L. T. 611). 

Scottish decision : Stewart v. Clyde Coal Co., 5 F. 120, follows Board- 
man V. Scott, sicpra. 

Arising Ottt of and In the Course of the Employment. — The personal 
injury by accident must hoth arise out of and be sustained in the course 
of the employment before compensation is payable under the Act (s. 1 
(1)), and the onus is on the applicant to show both these things {Pomfret 
V. Lancashire & Yorkshire Ely. Co., [1903] 2 K. B. 718 ; 72 L. J. K. B. 
729; 89 L. T. 176). These words come from the Act of 1897, and the 
decisions upon that Act apply. 

The words "arising out of" have been generally interpreted with 
reference to the scope of the workman's duties, and the risks which 
arise from those duties, the words " in the course of," with reference to 
the period of time witliin which the workman may be said to be in the 
employment. 

The injury does not arise out of the employment in the following 
cases : — If the workman at the time is acting in his own interest, and 
not in that of his employer {Smith v. Lancashire & Yorkshire Ely. Co., 
[1899] 1 Q. B. 141 ; 68 L. J. Q. B. 51 ; 79 L. T. 633) ; but if acting partly 
in his employer's interest it may {Mm^is v. Mayor, etc., of Lamheth, 1905, 
22 T. L. R. 22). If he knows the act is forbidden, or has no grounds for 
beHeving it to be part of his duty {Lotve v. Pearson, [1899] 1 Q. B. 261 ; 
68 L. J. Q. B. 122 ; 79 L. T. 654 ; Losh v. Evans, 1902, 19 T. L. R. 142 ; 
51 \V. R. 243 ; M' Allen v. Perthshire & Western DistHct, 1906, 8 F. 783). 

In the case of Losh v. Evans, supra, Collins, M.R., says : " It seemed 
to be clear that an employer was at liberty to define the sphere of duty 
of his workmen, and to divide the labour of his workmen into unintelli- 
gent labour and skilled labour. The case of Lowe v. Pearsoti, [1899] 1 Q. B. 
261, was an authority to show that a workman employed in one sphere 
of work could not make his master liable for injuries accidentally sus- 
tained by him while acting in another sphere. The question whether 



236 EMPLOYERS' LIABILITY 

and how far one sphere was marked off from another was a question of 
fact. In his opinion there was evidence justifying the County Court 
judge in finding as he had done, and his decision must be upheld." 
Approved in Scotland in Goslan v. James Gillies & Co., 1906, 44 S. L. R. 
71. On the other hand, the accident arises out of the employment if 
the workman on reasonable grounds thinks it is, or has under the cir- 
cumstances become, his duty to do the act, in the course of doing which 
he is injured (Whitehead v. Header, [1901] 2 K. B. 48; 70 L. J. K. B. 
546 ; 84 L T. 514 ; Menzies v. MQuibban, 1900, 2 F. 752 ; 37 S. L. R. 526 ; 
or if the act occasioning injury is done in the employer's interest in an 
emergency (Bees v. Thomas, [1899] 1 Q. B. 1015; 68 L. J. Q. B. 539; 
15 T. L. R. 301 ; London & Edinlntrgh Shipping Co. v. Brown, 1905, 7 F. 
488). But the emergency must not be one created by the misconduct of 
the workman himself (Bowell v. Lanarkshire Steel Co., 1904, 6 F. 1039; 
42 S. L. R. 231). 

If the workman's duties are loosely defined by the employer, an act 
really outside such duties may be considered as arising out of the 
employment (Brotvn v. Scott, Times, June 12, 1899). 

Both in England and Scotland it has been held that if the injury 
results from the wilfully tortious act of another person it does not arise 
out of the employment, though committed whilst the workman was 
pursuing his employment (Armitage v. Lancashire & Yorkshire Bly. Co., 
[1902] 2 K. B. 178 ; 86 L. T. 883 ; 18 T. L. R. 648 ; Falconer v. London 
& Glasgow Engineering Co., 1901, 3 F. 564 ; 38 S. L. R. 381 ; also see 
M'Intyre v. Bodgers & Co., 1903, 6 F. 176). But the contrary has been 
held where the acts of evil-disposed persons are known to be one of 
the risks of the employment (Challis v. London & South- Western Bly. 
Co., [1905] 2 K. B. 154; 74 L. J. K. B. 569; 93 L. T. 330). 

The injury may be said to arise out of the employment if the work- 
man, in performing his duty to his employer, adopts an unsafe, or even 
a dangerous way of doing it, if his conduct does not amount to serious 
and wilful misconduct (Durham v. Brown, 1898, 1 F. 279 ; 36 S. L. R. 190). 

It may also be said to arise out of the employment if the workman, 
owing to the state of his health, is unable to retain control over his 
actions, and meets with an accident owing to a risk of the employment, 
which he could easily have avoided in normal health — as where a 
workman had a fit whilst standing at his work near the hold of a 
vessel, and in consequence fell down the hold. This was held to be an 
accident arising out of the employment (Wilkes v. Doivell & Co., [1905] 
2 K. B. 225 ; 74 L. J. K. B. 572 ; 92 L. T. 677). 

"... in the Course of." — Generally the workman was said to be " in 
the course of the employment " if he was performing a duty owed to the 
employer, or a duty in which the employer was interested, on the 
employer's premises, or premises under his control. 

But the Courts gave the words even a wider interpretation, holding 
tlmt tlie course of employment might begin even before the workman 
came on to the employers' premises, if there was evidence that the work- 
man's freedoni of action was controlled by the employer. Also that 
whilst remaining on the employer's premises, though not employed at 
the time on the employer's work, the circumstances might show he was 
yet in the course of the employment. 

The decisions on this point under the Act of 1897 were nearly 
always complicated with the further question, whether the accident arose 
"on, in, or about" the works, as was required by sec. 7 (1). These 



EMPLOYEES' LIABILITY 237 

words have now disappeared, and with them some part of the reasoning 
on which the decisions were based. 

In Holness v. Mackmj and Davies, [1899] 2 Q. B. 319 ; 68 L. J. Q. B. 
724; 80 L. T. 831, the workman killed had not begun his work, nor 
reached the area of land under the employer's temporary control, though 
he was quite near it. Held that the accident did not arise out of, or in 
the course of, the employment. Here the man was on his way to work, 
and there was no real evidence that his freedom of action in coming to 
work the way he did was controlled by the employer. In Holmes v. Great 
Northern Ely. Co., [1900] 2 Q. B. 409 ; 69 L. J. Q. B. 854 ; 83 L. T. 44, the 
workman was directed by the employers to come to the place where his 
work was situated, by one of their trains from their station at King's Cross. 
The opinion was expressed that the w^orkman was in the course of his 
employment from the time he left the said station. But where the 
employers provided trains on their railway in which their men were 
allowed to travel to and fro from work if they so wished, but this was 
found to be a pure matter of grace, and no part of the terms of the 
employment, the employers were held not responsible for an accident to 
a workman at such time {Davies v. Rhymney Iron Co., 1900, 16 T. L. E. 
329). 

A workman who had been dismissed, but remained for some hours in 
the mine, was held at the end of such time not to be in the course of 
the employment {Smith v. Normanton Colliery Co., [1903] 1 K. B. 204; 
72 L. J. K. B. 76 ; 88 L. T. 5) ; but a workman who arrived by train 
early at the works, and, after depositing his workman's ticket at the 
office, and whilst in the course of proceeding to a refreshment shed 
provided by the employers in which the workmen prepared meals, 
was injured, the injury was held to have arisen in the course of the 
employment {Sharp v. Johnson, [1905] 2 K. B. 139; 74 L. J. K. B. 566; 
92 L T. 675). 

Where a workman stayed on the employers' premises during the 
dinner hour — a course which he adopted at his own pleasure, but with 
tlie employer's assent — an injury happening during this time was 
decided to have arisen in the course of the employment {Blovelt v. 
Sawyer, [1904] 1 K. B. 271 ; 73 L. J. K. B. 155 ; 89 L. T. 658). 

A workman in supplying or relieving his bodily necessities is not 
acting entirely in his own interest. His strength and capacity for work 
are matters in which his employer is interested likewise. See, where 
the principle was acted on, Morris v. Mayor, etc., of Lamheth, ante, p. 235 ; 
Keenan v. Flemington Coal Co., 1902, 5 F. 164; 40 S. L. E. 144. See 
further, on the question of the accident arising in the course of the 
employment, TocIcIy. Caledonian Ely. Co., 1899, 1 F. 1047; 36 S. L. E. 
784; Gibson v. Wilson, 1901, 3 F. 661 ; 38 S. L. E. 450; Caton v. Sum- 
merlee Iron Co., 1902, 4 F. 989 ; 39 S. L. E. 762 ; Benson v. Lancashire & 
Yorkshire Ely. Co., [1904] 1 K. B. 242 ; 72 L. J. K. B. 122 ; 89 L. T. 715. 

Locality. — In the Act of 1897 it was necessary that the accident 
should arise " on, or in, or about " the works of the employer. These 
words were construed to mean either on the premises themselves, or in 
close contiguity thereto {Powell v. Broivn, [1899] 1 Q. B. 157 ; 68 L. J. Q. Vk 
151 ; 79 L. T. 631 ; Lowth v. Ihhotson, [1899] 1 Q. B. 1003 ; 68 L. J. Q. B. 
465; 80 L. T. 341; Chambers y. Whitehaven Harbour CommissioTurSy [1899] 
2 Q. B. 132; 68 L. J. Q. B. 740; 80 L. T. 586; Fenn v. Miller, [1900] 
1 Q. r>. 788 ; 68 L. J. Q. B. 439 ; 82 L. T. 284 ; Back v. Dick, Kerr & Co., 
[1906] A. C. 325; 75 L. J. K. B. 569; 94 L. T. 802; Spacey v. Dowlais 



238 EMPLOYEES' LIABILITY 

Gas aiid Coke Co., [1905] 2 K. B. 879 ; Patteson v. White, 20 T. L. E. 775 ; 
Bell V. Whittm, 1899, 1 F. 942; 36 S. L. E. 754; Devine v. Caledonian 
Ely. Co., 1899, 1 F. 1105 ; 36 S. L. E. 877 ; Monaghan v. United Collieries 
Co., 1900, 3 F. 149 ; 38 S. L. E. 92 ; Ferguson v. Barclay, Sons & Co., 5 F. 
10*5; 40 S. L. E. 58; Mackenzie v. Coltiiess Iron Co., 1903, 6 F. 8; 41 
S L E 6; Cosgrave v. Anglo-American Oil Co., 1900, 34 Ir. L. T. E. 56; 
M^Adam v. Harvey, [1903] Ir. E. 2 K. B. 511). 

Further, it was also necessary, under the Act of 1897, that the 
accident should occur on, in, or about the employer's own works, of 
which he was the undertaker {Francis v. Turner Bros., [1900] 1 Q. B. 
478 ; 69 L. J. Q. B. 182 ; 81 L. T. 770 ; Wrigley v. Whittaker, [1902] A. C. 
299 ; 71 L. J. K. B. 600 ; 86 L. T. 775 ; Malcolm v. M'Millan, 1900, 2 F. 
525 ; 37 S. L. E. 383 ; Ramsay v. Mackie, 1904, 7 F. 106 ; 42 S. L. E. 114; 
Cooper & Greig v. Adanis, 7 F. 681 ; 42 S. L. E. 562). 

Under the Workmen's Compensation Act of 1906 the locality of 
the accident is immaterial. The employer is liable to the workman 
wherever the accident takes place, if at the time he is engaged in the 
employer's business. The only exception is under sec. 4, which refers 
to sub-contracting, and makes the employer, in the first instance, liable 
to pay compensation in respect of injuries happening to the workmen 
of liis sub-contractors. In this case the section provides (s. 4) that 
he shall not be so liable where the accident occurs elsewhere than on, 
or in, or about the premises on which he has undertaken to execute the 
work, or which are under his control or management. 

Eestrictions on the Eight to Eeceive Compensatiok. 

The following restrictions are imposed by the Workmen's Com- 
pensation Act, 1906, on the right to receive compensation: — 

1. Time of Disablement. — The injury must disable the workman for 
at least one week from earning full wages at the work at which he was 
employed (s. 1 (2) (a)). 

The period under the Act of 1897 was two weeks. 

If the incapacity lasts less than two weeks, no compensation is 
payable in respect of the first week (s. 1 (1) (b) (a)). 

Under the Act of 1897 no compensation was payable under any 
circumstances for the first two weeks. 

Under the present Act, if the incapacity lasts more than two weeks, 
compensation is payable from the time of the injury. 

If the incapacity lasts less than two weeks no compensation is 
payable in respect of the first week (Sched. I. (1) (b) (a)). 

It is believed that the one week referred to need not be the week 
immediately succeeding the date of the injury. 

The wages must be earned, though not necessarily at the same class 
of work, otherwise the employer's liability remains (Chandler v. Smith, 
[1899] 2 Q. B. 506 ; 68 L. J. Q. B. 909 ; 81 L. T. 317). 

2. Serimis and Wilfid Misconduct. — The injury must not be attribut- 
able to the serious and wilful misconduct of the workman, iinlcss the 
injury results in death or serious and permanent disablemeiit (s. 1 (2) (c)). 
These last words did not appear in the Act of 1897. Now the 
denendants of a person, whose death was caused by his own serious and 
wilful misconduct, may recover compensation, as may also the workman 
himself, if the injury so occasioned has resulted in his serious and 
permanent disablement. 



I 



EMPLOYEES' LIABILITY 239 

It is left to the arbitrator to decide what is serious and permanent 
disablement. It must be noticed that the disablement must be serious 
and permanent, if compensation is to be paid in respect of an accident 
caused by serious and wilful misconduct. 

Some difficulty is likely to arise where the arbitration proceedings 
are taken at a time when it is difficult, if not impossible, to say whether 
the injury will, or will not result in serious and permanent disablement, 
and the defence of serious and wilful misconduct is set up in answer to 
the claim. 

The following cases, decided under the Act of 1897, should be aon- 
siilted :—Bitmhold v. Nunnery Colliery Co., 1899, 80 L. T. 42; 63 J. P. 
132; Reeks v. Kynocli, Ltd., 1901, 18 T. L. R 34; John v. Albion Coal 
Co., 1901, 18 T. L. E. 27; Bees v. Poivell Duffryn Steam Coal Co., 1900, 
64 J. P. 164; Johnson v. Marshall, [1906] A. C. 409; 75 L. J. K B. 
868 ; 94 L. T. 828, where the question of serious and wilful misconduct 
was for the first time considered in the House of Lords ; Bist v. London 
& South- Western Ely. Co., 1907, 23 T. L. E. 471. 

In Scotland the words " serious and wilful misconduct " have been 
construed far more strictly against the claims of workmen than has 
been the case in England. See M'Mcol v. Sjners & Co., 1899, 1 F. 604; 
36 S. L. E. 428 ; Callaghan v. Maxwell, 1900, 2 F. 420 ; 37 S. L. E. 313 ; 
Dailley v. John Watson, Ltd., 1900, 2 F. 1044; 37 S. L. E. 782; Guthrie 
V. Boase Spinning Co., 1901, 3 F. 769 ; 38 S. L. E. 483 ; Logue v. Fullar- 
ton, 1901, 3 F. 1006; 38 S. L. E. 738 ; O'Hara v. Cadzow Spinning Co., 
1903, 5 F. 439; Lynch v. Baird & Co., 1901, 6 F. 271; 41 S. L. E. 214; 
Bmell V. Lanarkshire Steel Co., 1904, 6 F. 1039 ; 42 S. L. E. 231 ; United 
Collieries, Ltd.,Y. MGhie, 1904, 6 F. 808; 41 S. L. E. 705; Glasgow Coal 
Co. V. Sneddon, 1905, 7 F. 485 ; 42 S. L. E. 365 ; Dohson v. United Col- 
lieries, 1905, 8 F. 241 ; 43 S. L. E. 260 (note particularly the judgment 
of the Lord President); Vaughan v. Nicoll, 1906, 8 F. 464; 43 S. L. E. 
351 ; MGroarty v. John Brown, 1906, 8 F. 809 ; 43 S. L. E. 598. 

The question whether given facts amount to serious and wilful 
misconduct is a mixed question of fact and law, i.e. it is for the arbitrator 
to find the facts, and then to say whether they amount to serious and 
wilful misconduct within the Act. His decision on this latter point is 
appealable as a question of law. 

The Scottish Courts have not been very consistent on this question. 
They have expressed the opinion that it is a question of fact (see 
Vaughan v. Nicoll, supra), but in many instances have not hesitated 
to reverse the findings of a sheriff who has declared, upon certain 
established facts, that serious and wilful misconduct did or did not 
exist. 

Irish decision : GHanlon v. Dundalk and Neuri^y Steam Packet Co., 
1899, 33 Ir. L. T. E. 36. 

3. Notice and Claim. — Notice of the accident must be given and 
the claim for compensation made within the prescribed times (s. 2 (1)). 
Notice is to be given as soon as practicable after the happening of the 
accident, and before the workman has voluntarily left the employment 
(ibid.). 

The claim is to be made within six months from the occurrence of 
the accident causing the injury, or, in the case of death, within six 
months of time of death (ibid.). In the Act of 1897, power was given 
to excuse the want of notice, or inaccuracy in the notice, if the employer 
was not prejudiced in his defence thereby, or if the want of, or defect, 



240 EMPLOYEES' LIABILITY 

or inaccuracy in, the notice was occasioned by mistake or other reason- 
able cause. No such power existed with regard to a failure to make the 
claim within the prescribed time 

Now power exists to excuse a failure to give notice, or to make the 
claim within the prescribed time, if such failure was occasioned by 
mistake, absence from the United Kingdom, or other reasonable cause 

(s. 2 (!)'(«), {h)). 

The Act prescribes what information the notice of accident shall 
contain and the way or ways in which it is to be served on the 
employer (s. 2 (2), (3), (4)). 

These provisions point to the notice of accident being in writing. 
In England a notice intimating an intention to claim damages at 
common law or under the Employers' Liability Act may be treated 
as a notice, or even in lieu of a claim under the Workmen's Compensa- 
tion Act {Burr v. Whiteley ; not reported on this point), but apparently 
this is not so in Scotland (Thompson v. Baird & Co., 1903, 6 F. 142; 
41 S. L. R. 152). 

Consult, as to notice of injury, Williams and Thomas v. L. & Y. 
Asmir Co., 1902, 19 T. L. R 82; M'Lean v. Carse and Holmes, 1899, 
1 F. 878; 36 S. L. R. 678; Shearer v. Miller, 1899, 2 F. 114; 37 
S. L R. 80 ; RanUne v. Alloa Coal Co., 1903, 5 F. 1164 ; 41 S. L. R. 306 ; 
Perinj V. Clements, 1901, 17 T. L. R. 525. 

Considerable difficulty arose under the Act of 1897 as to what 
could be said to amount to a claim for compensation, whether it 
meant a mere request to the employer to pay compensation or the 
commencement of arbitration proceedings to enforce the claim. The 
House of Lords decided in the case of Powell v. Main Colliery Co., [1900] 
A. C. 366 ; 69 L. J. Q. B. 758 ; 83 L. T. 85, that the first of these views 
is the correct one. 

The Court of Appeal in England has gone the length of declaring 
that a claim for compensation need not even be made in writing 
{Lo^ve v. Myers, [1906] 2 K. B. 265 ; 75 L. J. K B. 651 ; 95 L. T. 35). 

The Scottish Courts have taken a stricter view as to the meaning of 
the words " claim for compensation," for without expressly deciding that 
the claim must be in writing, they have held that a written claim 
which failed to specify a definite and specific amount of compensation 
is not a claim within the Act {Bennett v. Wordie & Co., 1899, 1 F. 855 ; 
36 S. L. R. 643, followed in Maver v. Park, 1905, 8 F. 250 ; 43 S. L. R. 
191 ; see also Fraser v. Gt. North of Scotland Ply. Co., 1901, 3 F. 
908; 38 S. L. R. 653.) 

Though the Act declares that proceedings shall not be maintainable 
unless the claim for compensation has been made within six months, 
the employer may, by his own conduct, become estopped from setting 
up this defence. See, for cases of estoppel, Wright v. Bagnall & Sons, 
[1900] 2 Q. B. 240; 69 L. J. Q. B. 551; 82 L. T. 346; Kendall v. Hill 
Dry Docks & Engineering Co., [1900] 2 Q. B. 245; 69 L. J. Q. B. 554; 
82 L. T. 521. 

4. Medical Eocamination under Sched. I. (4). — The workman who has 
j?iven notice of an accident must, if required by the employer, submit 
to an examination by a medical practitioner, provided and paid by the 
employer. If he refuses or obstructs such an examination, his right to 
compensation, and to take any proceeding to recover it, is suspended 
until the examination lias taken place (s. 1 (4)). See Oshorn v. Vickers, 
Soils & Maxim., [1900] 2 Q. B. 91; 69 L. J. Q. B. 606; 82 L. T. 491. 



EMPLOYEES' LIABILITY 241 

As to suspension of compensation when workman who is receiving it 
refuses to submit to medical examination, see ^wst, p. 252. 

No compensation is afterwards payable in respect of a period of 
suspension so caused (Sched. 1 (20)). 

Election of Eemedies. 

None of a workman's rights, either at common law or under the 
Employers' Liability Act, 1880, are taken away by the present Act, 
but, as between himself and his employer, he is required to elect 
whether he will enforce these rights or claim compensation under the 
Workmen's Compensation Act (s. 1 (1) (b)). The employer is not to pay 
twice in respect of the same accident. 

Where the workman sues the employer at common law or under the 
Employers' Liability Act, and fails, and it is shown in such action that 
the employer would have been liable to pay compensation under the 
Act, such Court is on the plaintiffs demand to award compensation, and 
may deduct from the compensation all or part of (these words are new) 
the costs which have been caused by the plaintiff bringing the action, 
instead of proceeding for compensation (s. 1 (4)). 

The Court of Appeal in England has decided in the case of Edivards 
V. Godfrey, [1899] 2 Q. B. 333 ; 68 L. J. Q. B. 666 ; 80 L. T. 672, that 
the above is the only case where a locus penitentice is allowed the work- 
man. In all other cases his election is final, and if he has pursued the 
wrong remedy against his employer he cannot afterwards pursue the 
right one. It is true a Divisional Court decided in Isaacson v. New 
Grand {Clapham Junction), [1903] 1 K. B. 539; 72 L. J. K. B. 227; 88 
L. T. 291, that a workman who had failed in his action under the 
Employers' Liability Act, and then applied for compensation under the 
Workmen's Compensation Act, had not exercised an option so as to 
estop him from appealing against the dismissal of the employer's 
liability action. The Court thought he was entitled to appeal against 
both decisions of the County Court judge. In Bouse v. Dixon, [1904] 
2 K. B. 628 ; 73 L. J. K. B. 662 ; 91 L. T. 436, a Divisional Court also 
decided that where a workman who had claimed compensation, and gone 
so far as to file a request for arbitration, which he withdrew on seeing the 
answer put in by the employer, had not finally exercised his power of 
election, and was not estopped from suing under the Employers' Liability 
Act. These cases, however, have some doubt thrown upon them 
by the decision of the Court of Appeal in Neah v. The Electric and 
Oixlnance Co., [1906] 2 K. B. 558; 75 L. J. K. B. 974; 95 L. T. 592, 
where the workman, having failed under the Employers' Liability 
Act, claimed and was awarded compensation under the Workmen's 
Compensation Act. Held that he had exercised his option, and there 
was no appeal. 

Neither the Scottish nor the Irish Courts have followed the English 
decision in Edioards v. Godfrey, supra ; McDonald v. James Dunlo]) & Co., 
1905, 7 E. 533 ; 42 S. L. E. 394 ; BecUey v. Scott, [1902] 2 K. B. Ir. 504 ; 
:)6 Ir. L. T. E. 130. 

In Taylor v. Hamstead Colliery Co., [1904] 1 K. B. 838 ; 73 L. J. K. B. 
469 ; 90 L. T. 363, the Court of Appeal held that a workman who had 
joined a scheme certified under sec. 3 of the Act, contracting himself 
out of the Act, had exercised an option to accept the scheme as thougli 
it had been the compensation given by the Act, and that his personal 
VOL. V. 16 



242 EMPLOYERS' LIABILITY 

representatives could not afterwards sue the employers in respect of 
his death resulting from accident. 

An option exercised by an infant is revocable unless the event shows 
that the exercise of it was for his benefit {Stephens v. The DudhHdge Iron- 
works Co., [1904] 2 K. B. 225 ; 73 L. J. K. B. 739 ; 90 L. T. 838). 

Where the workman's action is unsuccessful, and he wishes to claim 
compensation under sec. 1 (4) of the Workmen's Compensation Act, he 
must make his claim to the Court (i.e. the judge; see Henclersmi v. 
Corporatim of Glasgow, 1900, 2 F. 1127 ; 37 S. L. R. 857) trying the 
action, and within a reasonable time (Quinn v. John Broivn & Co., 1906, 
8 ¥. 855; 43 S. L. K. 643; Baird v. Higginhothani, 1901, 3 F. 673; 
38 S. L. R. 479). 

See further, as to election by a workman, Oliver v. Nautilus Steam 
Shippiiui Co., [1903] 2 K. B. 639 ; 72 L. J. K. B. 857 ; 89 L. T. 318 ; Camp- 
hell V. Caledonian Ely. Co., 1899, 1 F. 887; 36 S. L. R. 699; Little v. 
M'Lellans, 1900, 2 F. 387; 37 S. L. R. 287; Mathieson v. Hatvthorns, 

1899, 1 F. 468; Dornan v. Allan, 1900, 3 F. 112; 38 S. L. R. 70; 
Docherty v. M' Alpine, 1899, 2 F. 128 ; Hunter v. Darngavil Coal Co., 

1900, 3 F. 10 ; 38 S. L. R. 6 ; Fmjoler v. Hughes, 1903, 5 F. 394 ; Bobertsm 
V. Henderson & Sons, 1905, 6 F. 770 ; 41 S. L. R. 597 ; 7 F. 776. 

By the same section of the Act the Court which awards compensation 
after an action has proved unsuccessful may "deduct from the compensa- 
tion all or part of the costs which in its judgment have been caused by 
the plaintiff bringing the action instead of proceeding under this Act." 

Under the Act of 1897 the words were " shall be at liberty to deduct 
from such compensation all the costs," etc. 

The Court is not obliged to order any costs to be deducted from the 
compensation. The discretion is absolute (Cattermole v. Atlantic Trans- 
port Co., [1902] 1 K. B. 204; 71 L. J. K. B. 173; 85 L. T. 513; also 
Skeggs v. Keen, Times, June 19, 1899 ; M'Kenna v. United Collienes, 
1906, 8 F. 969 ; 43 S. L. R. 713). 

Under sec. 6 of the Act of 1897, if a workman was injured under 
such circumstances as gave him a right of action against some person, 
other than his employer, he had (as under s. 1 (4)) to exercise an 
option wliether he would sue such other person or claim compensation 
under the Act from his employer. By the corresponding section (s. 6(1)) 
of the Act of 1906, he may take proceedings against both, but shall not 
be entitled to recover both damages and compensation. 

Of course he is not bound to take these double proceedings, and if he 
recovers compensation from his employer, the employer (and any person 
who lias been called on to pay an indemnity under the section of the 
Act relating to sub-contracting) is entitled to be indemnified by the 
pereon from whom the workman could have claimed damages (s. 6 (2)). 

This indemnity, in default of agreement, to be settled by action, or 
by consent of the parties by arbitration, under this Act. 

It was decided under the Act of 1897, in Gt. Northern Ely. Co. v. 
Whitehead, 18 T. L. R. 816, that the indemnity includes the costs of the 
arbitration proceedings, as well as the amount of compensation awarded. 

The employer who pays compensation after a claim made upon hiiii, 
but without being compelled by judicial proceedings, is entitled to 
indemnity {Thompson v. North-Eastern Marine Engineering Co., [1903] 
1 K. B. 428 ; 72 L. J. K. B. 222 ; 88 L. T. 239). This, it is believed, can 
only be where the claim is good, or at all events likely to succeed. See 
decisions under sec. 6 of Act of 1897 : Mulligan v. Dick & Son, 1903, 



EMPLOYEES' LIABILITY 243 

6 F. 126; 41 S. L. E. 77; Murray v. North British Ely. Co., 1904, 
6 F. 540 ; 41 S. L. E. 383 ; Oliver v. Nautilus Steam Ship^ng Co., supra. 

The Compensation. 

The amount of the compensation is fixed in the first schedule to the 
Act, clauses (1), (2), (3). 

(a) In Case of Death. — (1) Where the workman leaves dependants 
wholly dependent upon his earnings, a sum equal to his earnings in the 
employment of the same employer during the three years next preceding 
the injury, or £150, whichever of those sums is the larger, but not 
exceeding in any case £300. 

If the period of the workman's employment by the said employer 
has been less than the said three years, his earnings shall be deemed to 

.e 156 times his average weekly earnings during the period of his actual 
t'lnployment under the said employer. Any weekly payments of com- 
|)ensation already made, and any lump sum paid in redemption thereof, 

ire to be deducted. 

(2) If the workman only leaves dependants in part dependent upon 
his earnings, such sum, not exceeding the amount which could have been 
;iwarded to total dependants, as may, by agreement between the parties, 
-r arbitration under the Act, be determined to be reasonable and 
proportionate to the injury to the said dependants. 

(3) Where no dependants are left, the reasonable expenses of the 
workman's medical attendance and burial, not exceeding £10. 

(b) For Total or Partial hicapacity. — Where total or partial incapacity 
for work results from the injury, a weekly payment during the incapacity, 
not exceeding 50 per cent, of his average weekly earnings during the 
previous twelve months, if he has been so long employed, but if not, 
then for any less period during which he has been in the employment 
<.)f the same employer, such weekly payment not to exceed £1. 

Provided that — 

{a) No compensation is payable if the injury does not disable for 
me week (s. 1 (1), (2) (a)). 

ih) If the incapacity lasts less than two weeks no compensation shall 
1)6 payable in respect of the first week ; and 

(c) As respects the weekly payments during total incapacity of a 
workman, who is under twenty-one years of age at the date of the 
injury, and whose average weekly earnings are less than twenty shillings, 
100 per cent, shall be substituted for 50 per cent, of his average weekly 

Jirnings, but the weekly payments shall in no case exeed ten shillings 
* Sched. I. (1) {h) (b)). 

The following points, with reference to the compensation payable in 
' ase of death, should be noticed. 

If dependants wholly dependent are left, whether one or more, the 

irbitrator must award three years' wages, with a maximum of £300 and a 

ninimum of £150. He cannot give less, though he may think less would 

uftice, though now where both total and partial dependants are left he 

:iiay apportion the compensation between them (see Sched. I. (8)). 

The death results from the injury if it is in fact caused by it, though 
t may not be the natural or probable consequence {Dunham v. Clare, 
11902] 2 K. B. 292; 71 L. J. K. B. 683; 66 L. T. 751; Colder v. 
''aledmiaii Ely. Co., 1902, 5 F. 123 ; 40 S. L. E. 89 ; Warnock v. Clasgoiu 
Iron and Steel Co., 1904, 6 F. 474; 41 S. L. E. 359). 



244 EMPLOYERS' LIABILITY 

In the Act of 1897 the words used were " if he leaves dependants 
dependent upon his earnings at the time of death" These words "a: 
tlie time of death" do not appear now in Sched. I. (a) (1) of thr 
new Act, but as they appear in the definition clause (s. 13) no alteration 
in the law is effected, and the decisions under the Act of 1897 will apply. 
See Pryce v. Penrihjher Navigation Colliery Co., [1902] 1 K. B. 221 ; 71 
L J K B. 192 ; 85 L. T. 477 ; and Bees v. Penrikyher Navigation Collien/ 
Co., [1903] 1 K. B. 259 ; 72 L. J. K. B. 85 ; 87 L. T. 661 ; CoidthanJ 
V. Consett Iron Co., [1905] 2 K. B. 869 ; 75 L. J. K. B. 60 ; 93 L. T. 75G. 

The arbitrator, in considering partial dependency, need not take into 
account the sum which the maintenance of the workman, if alive, would 
liave cost the partial dependant {Osmond v. Campbell & Harrison, [1905] 
2 K. B. 852 ; 75 L. J. K. B. 1 ; 93 L. T. 724). He may, claiming r< 
part dependant, take into consideration the workman's funeral expenses 
where such were in fact incurred (Bevan v. Crawshay Bros., [1902] 
1 K. B. 25 ; 71 L. J. K. B. 49 ; 85 L. T. 496 ; Hughes v. Siimmerlee Iron 
and Steel Co., 1903, 5 F. 784; 40 S. L. E. 602). 

Tlie expression "earnings" is held to include everything the 
workman received from his employer as wages, though some small 
part was in the nature of special allowance to enable him to perform 
liis duty (Ahram Coal Co. v. Sov.theom, [1903] A. C. 306; 72 L. J. K. B. 
691; 89 L. T. 103; Midland Bly. Co. v. Sharp, [1904] A. C. 349; 7: 
L. J. K. B. 666 ; 91 L. T. 181 ; Great Northern Bly. Co. v. Daiuson, [1905 
1 K. B. 331 ; 74 L. J. K. B. 271 ; 92 L. T. 145 ; also Houghton v. Suttoi 
Heath Collieries Co., [1901] 1 Q. B. 93 ; 70 L. J. Q. B. 61 ; 83 L. T. 472) 
but the value of tuition was held too vague to be accounted as " earnings ' 
(Pomjohrey v. Southward Bress, [1901] 1 Q. B. 86 ; 70 L. J. Q. B. 48 ; 8: 
L. T. 463). The new Act, however, declares that " where the employei 
has Ijeen accustomed to pay to the workman a sum to cover any specia 
expenses entailed on him by the nature of his employment the sum s( 
paid shall not be reckoned as part of the earnings " (Sched. I. (2) {d)). 

The basis of calculating " earnings " is with reference to the timt 
immediately preceding the injury during which the workman has beei 
continuously employed by the same employer. As to what is, or is not 
continuous employment, see Keast v. The Barrow Hematite Steel Co., 1.' 
T. L. II. 141 ; Jones v. Ocean Coal Co., [1899] 2 Q. B. 124; 68 L. J. Q. B 
731 ; 80 L. T. 582 ; Appleby v. The Horseley Co., and Lovatt v. The Horsele>\ 
Co., [1899] 2 Q. B. 521; 68 L. J. Q. B. 892; 80 L. T. 853; but if tbj 
employment is continuous by the same employer, it need not be in th' 
same capacity (Price v. Marsden & Sons, [1899] 1 K. B. 493 ; 68 L. J. Q. 1: 
307; 80 L. T. 15; Giles v. Belford, Smith & Co., [1903] 1 K. B. 843 
72 L. J. K. B. 569; 88 L. T. 754; Small v. 3ICormick, 1899, 1 F. 883: 
36 S. L li. 700.) I 

As to what amounts to total dependency, see Coi(,lthard v. Consew 
Iron Co., supra ; Turners, Ltd., v. Whitefield, 1904, 6 F. 822 ; 41 S. L. l! 
031 ; Cu7iningham v. WGregor & Co., 3 F. 775 ; 38 S. L. E. 574 ; Sncddoi 
V. Bohert Addie & Sons, 1904, 6 F. 992 ; 41 S. L. R 826 ; Qiceen v. Clarb 
[1906] Ir. H. K. B. 135. 

Tlie compensation during total or partial incapacity for work is t 
be based on the workman's " average weekly earnings" (Sched. L (b)). 

These words, as used in the Act of 1897, occasioned infinite troubl 
and some injustice, for they were employed without interpretation, an 
no other basis of assessing compensation for total or partial incapacit 
was given. So much was this the case that the Court of Appeal fe 



I 



EMPLOYEES' LIABILITY 245 

constrained to exclude from the benefit of that Act altogether, any 
workman who could not be said to have average weekly earnings in 
the service of the employer, by whom he was employed at the time 
of the injury. This was decided in the cases of Lysons v. Knowles, 
[1900] 1 Q. B. 780 ; 69 L. J. Q. B. 449 ; 82 L. T. 189 ; and Stuart v. 
^^ixon, [1900] 2 Q. B. 95 ; 69 L. J. Q. B. 598 ; 82 L. T. 489. Both of 
these decisions were reversed by the House of Lords (see [1901] A. C. 
79; 70 L. J. Q. B. 170; 84 L. T. 65); but the learned Law Lords laid 
down no principles by which in such cases the compensation could be 
arrived at, beyond saying that where the employment was casual, the 
arbitrator must arrive at some method of assessing compensation by 
using the best materials at his command. 

This has since been the unsatisfactory system pursued (see Ay res v. 
Buckeridge, Wliecd v. The Rhymney Iron Co., and Jones v. The Rhymney 
Iron Co., reported together, [1902] 1 K. B. 57 ; 71 L. J. K. B. 28 ; 85 
L. T. 472) ; but as, even in the case of employment of the most casual 
kind, only the wages earned, or which there was a probability would 
liave been earned, but for the accident, in the service of the employer 
from whom compensation was claimed, could be regarded, the result 
often amounted to almost a denial of justice. See Bartlett v. Tutton <& 
Son.% [1902] 1 K. B. 72 ; 71 L. J. K. B. 52 ; 85 L. T. 531 ; Rathaivay v. 
Argus Printing Co., [1901] 1 Q. B. 96 ; 70 L. J. Q. B. 12 ; 83 L. T. 465 ; 
Waiters v. Clover & Co., 1901, 18 T. L. R. 60 ; Sjiiall v. WCormick & 
Ewing, 1899, 1 F. 883 ; 36 S. L. R. 700. 

Compensation is fixed on the scale of wages payable to the injured 
workman at the time of the injury. A subsequent fall in the rate of 
wages is no good ground for an application to reduce the compensation 
{James v. Ocean Coal Co., [1904] 2 K. B. 213; 73 L. J. K. B. 915; 90 
L T. 834; Jamieson v. Fife Coal Co., 1903, 5 F. 958; 40 S. L. R. 704). 

The Scottish decisions exhibit the same inconvenience, owing to the 
absence of any principle of ascertaining average weekly earnings. See 
Doyle V. Beattie & Sons, 1900, 2 F. 1166; 37 S. L. R. 915; Russell v. 
MCluskey, 1900, 2 F. 1312; 37 S. L. R. 931; Forrester v. MCalhun, 
1901, 3 F. 650; 38 S. L. R. 448; Leonard v. Baird, 1901, 3 F. 890; 
•••.8 S. L. R. 649; Nelson v. Kerr, 1901, 3 F. 893; 38 S. L. R. 645; 
Peacock v. Niddrie Coal Co., 1902, 4 F. 443; 39 S. L. R. 317; Campbell 
V. Fife Coal Co., 1902, 5 F. 170 (which decided that "weeks" mean 
trade weeks) ; Brown v. J. & J. Cunningham, 1904, 6 F. 997 ; 41 S. L. R. 
■^35; Hunter v. William Baird & Co., 1904, 7 F. 304; 42 S. L. R. 245. 

The compensation in the case of total or partial incapacity is to 

ontinue as long as the incapacity continues (Sclied. I. (h)\ but is not 

lo exceed fifty per cent, of the average weekly earnings of the workman. 

If the workman is earning as much as he was before the injury, 
no compensation can be awarded, but he must be earning it, or, at all 
events, capable of earning it. See Chandler v. Smith, [1899] 2 Q. B. 506 ; 
68 L J. Q. B. 909 ; 81 L. T. 317. 

When a workman was receiving the same earnings as before the 
injury, but there was some probability that the consequences of the 
injury would recur, and cause incapacity in the future, the Court of 
Appeal in England adopted the course of making an award for a nominal 
miount, generally one penny, in order to preserve the workman's riglits, 
md enable an application to be made for an increase of the compensation 
if tlie circumstances warranted it. See Irons v. Davies & Timmins, Ltd,, 
[1899] 2 Q. B. 330 ; 68 L. J. Q. B. 673 ; 80 L. T. 673. 



246 EMPLOYERS' LIABILITY 

This was the procedure for some time adopted in Scotland (see 
Freelaiid v. Macfarlane, 1900, 2 F. 832; 37 S. L. R. 599; Cammick v. 
aia.'^rjmv Iron and Steel Co., 1901, 4 F. 198 ; 39 S. L. E. 138), but latterly 
the Court of Session refused to follow this course where the injury and 
the consequences were apparent {Husband v. Campbell, 1903, 5 F. 1146; 
40 S. L. R. 822), and in the recent case of Clelland v. Singer Manvfac- 
turing Co., 1905, 7 F. 975 ; 42 S. L. R. 757, decided that the sheriff had 
no power to make a nominal award of one penny a week without the 
consent of both parties, and declared that such a proceeding was not 
sanctioned by the Act. 

Average Weekly Earnings wonder Present Act. — The difficulty of 
ascertaining average weekly earnings is to a great extent met by the 
provisions of the new Act, which declares (Sched. I. (2) {a)) that they 
shall be computed in such manner as is best calculated to give the 
rate per week at which the workman was being remunerated; but 
that where by reason of the shortness of the time of employment, oi 
the casual nature of the employment, or the terms of the employment, 
it is impracticable to compute the rate of remuneration, regard may 
be had to the average weekly amount which, during the twelve months 
previous to the accident, was being earned by a person in the same 
grade employed at the same work by the same employer, or, if there 
is no person so employed, by a person in the same grade employed in 
the same class of employment, and in the same district. 

This is adopting the method of ascertaining earnings laid down in 
the Employers' Liability Act, 1880 (see ante, p. 218). 

The Act further provides that where the workman, under concurrent 
contracts with two or more employers, works at one time for one such 
employer, and another time for another such employer, his average 
weekly earnings are to be computed as if his earnings under all such 
contracts were earnings in the employment of that employer for whom 
he was working at the time of the accident (Sched. I. (2) (&)). 

Employment by the same employer is to mean employment by the 
same employer in the grade in which the workman was employed at 
the time of the accident, uninterrupted by absence from work, due to 
illness or any other unavoidable cause (Sched. I. (2) (c)). 

In fixing the weekly compensation, regard is to be had to any pay- 
ment, allowance, or benefit which the workman may receive from his 
employer during his incapacity ; and, in the case of partial incapacity, 
the weekly payment is in no case to exceed the difference between the 
amount of the average weekly earnings of the workman before the 
accident, and the average weekly amount which he is earning, or is 
able to earn, in some suitable employment or business, after the 
accident, but must bear such relation to the amount of that difference 
as under the circumstances of the case may appear proper (Sched. I. (3)). 
See decisions under the corresponding section of the Act of 1897, which 
was not quite in the same words {Illimjiom'th v. Walmsley, [1900] 2 Q. B. 
142; 69 L J. Q. B. 519; 82 L. T. 647; Jones v. L. & JV.-W. Big. Co., 
Minton Senliouse Reports, vol. iv. 140; Norman <& Btirt v. Walder, 
[1904] 2 K. B. 27 ; 73 L. J. K. B. 461 ; 90 L. T. 531. Scottish decisions : 
Geary v. William Dixon, Ltd., 1902, 4 F. 1143 ; 36 S. L. R. 640 ; Parker 
V. JMxon, 1902, 4 F. 1147; 39 S. L. R. 663; Corbet v. Glasgoiv Iron and 
Steel Co., 1903, 5 F. 782; 40 S. L. R. 601). 

Review of Weekly Compensation. — Any weekly payment may be 
reviewed at the request either of the employer or of the workman, 



EMPLOYERS' LIABILITY 247 

and on such review may be ended, diminished, or increased, subject to 
the maximum above provided; and the amount of payment shall, in 
default of agreement, be settled by arbitration under this Act (Sched. I. 
(16)). 

Weekly payments are generally reviewed by the County Court 
judge. The parties themselves may review, and a review may be 
implied from their conduct {Bradhury v. Bedworth Coal Co., Times, 
March 17, 1900). The arbitrator cannot lay down any general rule 
as to the amount he will or will not give. He must be guided by the 
circumstances ( Wehster v. Sharpe, [1905] A. C. 284 ; 74 L. J. K. B. 776 ; 
92 L T. 373). 

The weekly payment awarded cannot be varied unless the circum- 
stances are changed {Crossfield v. Tanian, [1900] 2 Q. B. 629 ; 69 L. J. Q. B. 
790 ; 82 L. T. 813). See as to what is " a change," Sharman v. Holliday, 
[1904] 1 K. B. 235 ; 73 L. J. K. B. 176 ; 90 L. T. 46. 

The arbitrator may stop the weekly payment as from a date prior 
to the date of his award, and (in England) prior to the date of the 
commencement of the arbitration proceedings to review {Francis 
Morton & Co. v. Woodward, [1902] 2 K. B. 276; 71 L. J. K. B. 736; 
86 L. T. 878). Contra, in Scotland, see Steel v. Oakhank Oil Co., 1902, 
5 F. 244; 40 S. L. R. 204; Pumjpherston Oil Co. v. Cavaney, 1903, 
5 F. 963 ; 40 S. L. R. 724. 

An arbitrator cannot make an award that compensation shall continue 
to some fixed future date {Allan v. Thomas Spowart & Co., 8 F. 811; 
43 S. L. R. 599). 

Occasionally the compensation, plus the wages being earned after the 
accident, amounted to more than the workman's original wages. This 
was declared in Scotland to be wrong {Bryson v. Dunn, 1905, 8 F. 226 ; 
43 8. L. R. 236), and such a result is now forbidden in terms by the 
new Act (s. 1 (3), supra). 

The arbitrator must generally only regard the present physical con- 
dition of the workman as occasioned by the accident, but he may regard 
a refusal to obey reasonable medical directions {Dovxls v. Bennie & Sons, 

1902, 5 F. 268; 40 S. L. R. 239). He cannot order a workman to 
undergo an operation as a condition of continuance of the compensation 
{Rothivell V. Davis, 1903, 19 T. L. R. 423); at all events, where the 
operation is of a serious nature {Anderson v. Baird & Co., 1903, 5 F. 
373 ; 40 S. L. R. 263 ; Sioeeney v. Pumpherston Oil Co., 1903, 5 F. 972 ; 
40 S. L. R. 721). 

Other decisions as to the review of weekly compensation : Clark v. 
Gas Liqlit and Coke Co., 1905, 21 T. L. R. 184; Beath & Keay v. Ness, 

1903, 6 F. 168; 41 S. L. R. 113; Colville & Sons v. Tighe, 1905, 
8 F. 179; 43 S. L. R. 129; Husband v. Caraphell, 1903, 5 F. 1146; 
40 8. L. R. 822. 

Redemption of Compensation. — The employer alone can take arbitra- 
tion proceedings for the purpose of redeeming the weekly payments by 
the payment of a lump sum. He can do this when he has continued 
the payments for not less than six months (Sched. I. (17)). 

Under the Act of 1897 no principle was laid down to guide the 
arbitrator in deciding what the lump sum should be. Under the new 
Act the amount which is to be paid for redemption when the incapacity 
is permanent is a mere question of calculation. It must be such a sum 
as will purchase an annuity for the workman equal to three-quartei-s of 
the annual value of the weekly payments he was receiving at the time. 



248 EMPLOYEES' LIABILITY 

Where the incapacity is not permanent, the matter is still left to the 
discretion of the arbitrator. The arbitrator may now order any lump 
sum awarded in lien of weekly payments to be invested or otherwise 
applied for the benefit of the person entitled to it. The lump sum in 
lieu of weekly payment may be settled between the parties themselves 
(ibuL). In an application to redeem, the employer cannot insert in the 
application the sum for which he is willing to redeem ; he must leave 
this to the discretion of the County Court judge (Castle Spinning Co. v. 
Atkinson, [1905] 1 K. B. 336 ; 74 L. J. K. B. 265 ; 92 L. T. 147). 

Compensation to Infant Workmen. — The new Act gives special pri^'i- 
leges to workmen under the age of twenty-one years as regards the 
amount of compensation. If the average earnings of such workman 
are less than twenty shillings, the arbitrator can award one hundred 
per cent, instead of fifty per cent, provided the amount awarded does 
not exceed ten sliillings a week (s. 1 (1) (h)), and when reviewing the 
weekly payments of such a workman, more than twelve months after 
the accident, compensation may be given to the extent of fifty per cent, 
of the earnings which the workman would probably have been receiving 
at the time but for the accident, but not exceeding one pound a week. 

Protection of the Compensation. — In order to insure that the workman 
shall receive the compensation given by the Act, and that it shall be 
applied for the purpose for which it is intended, viz., for the support of 
tlie workman and his family or dependants, the following provisions are 
contained in the Act : — 

(a) If the employer is insured under the Act, then notwithstanding 
his bankruptcy, or if a company, notwithstanding that the company has 
commenced to be wound up, all the rights and remedies of the employer 
are transferred to the workman. The trustee or receiver in bankruptcy 
has no rights with reference to the compensation, but the workman, if 
the liability of the insurers is less than the liability of the employer 
to him, may prove for the balance in the bankruptcy or liquidation 
(s. 5 (1) and (2)). 

{h) In a similar case of bankruptcy or winding-up, compensation 
under the Act, due before such date, to the extent of a hundred pounds 
in any one case, is made a preferential debt, within the Preferential 
Payments in Bankruptcy Act, 1888, s. 1, and the Preferential Payments 
in Iknkruptcy (Ireland) Act, 1889, s. 4 (s. 5 (3)). 

As to weekly payments, the amount due in respect thereof is to be 
taken to be the amount of the lump sum for which the weekly payments 
being made could, if redeemable, be redeemed by the employer under 
clause 17 of the first schedule. 

(c) Compensation payable to a miner or his dependants in the 
winchng-up of a company, within the meaning of the Stannaries Act, 
1887, is also made a preferential payment within sec. 9 of that Act 
(8.5(4)). 

The provisions (6) and (c), supra, do not apply where the employer 
or company has entered into a contract with insurers. In such a case 
the workman has the advantage secured by provision («), siqira. None 
of the foregoing provisions (a), (b), or (c), apply where a company is 
wound u}) voluntarily merely for the purposes of reconstruction or 
amalgamation with another company (s. 5 (5) and (6)). 

(d) In every case of death (save when no dependants are left, and 
the (juestion is only as to compensation for medical expenses and burial) 
the compensation is to be paid into Court and invested, applied, or 



I 



EMPLOYERS' LIABILITY 249 

otherwise dealt with by the Court, as in its discretion it thinks fit, for 
the benefit of the persons entitled thereto (Sched. I. (5)). 

(e) Weekly payments of compensation payable to a person under 
any legal disability may be ordered to be paid into a County Court, to 
be dealt with as the Court may think fit, in the interest of such person 
(s. 1 (7)). 

(/) Where, on application being made in accordance with rules of 
Court, it appears to a County Court that, on account of neglect of children 
on the part of a widow, or on account of the variation of the circum- 
stances of the various dependants, or for any other sufficient cause, an 
order of the Court, or an award as to the apportionment amongst the 
several dependants, of any sum paid as compensation, or as to the manner 
in which any sum payable to any such dependant is to be invested, applied, 
or otherwise dealt with, ought to be varied, the Court may make such 
order for the variation of the former order or the award, as in the 
circumstances of the case the Court may think just (Sched. I. (9)). 

This clause gives the County Court almost unlimited discretion with 
regard to compensation awarded under the Act to dependants. 

(g) Weekly payments of compensation, or any lump sum paid in lieu 
thereof, cannot be assigned, charged, or attached, nor pass to any other 
person by operation of law, nor can any claim be set off against them 
(Sched. I. (19)). 

No set-off can be allowed even where the money due to the employer 
arises in the compensation proceedings {Bosewell Gas Coal Co. v. M' Vicar ^ 
7 F. 290 ; 42 S. L. R. 233). 

Liability of Principal for Contractor. 

Sec. 4 of the Workmen's Compensation Act, 1906 (which differs in 
some respects from the corresponding section in the Act of 1897), deals 
with the liability of a principal contractor to the workmen of his sub- 
contractors. It renders every such principal, who for the purposes 
of his trade or business contracts with any other person (called the 
contractor), for the execution by or under the contractor of the wliole 
or any part of any work undertaken by the principal, liable to pay to 
any workman employed in the execution of the work the compensation 
which he would have been liable to pay if that workman had been 
immediately employed by him. The compensation is to be calculated 
with reference to the earnings which the injured workman received 
from the employer by whom he was immediately employed, i.e., from 
the contractor (s. 4 (1)). 

The principal who pays compensation as above, is entitled to be 
indemnified by any person who otherwise would have been liable to pay 
the compensation to the workman. All questions between the principal 
and the persons from whom he claims indemnity are to be settled by 
arbitration under the Act (s. 4 (2)). 

The workman may, at his option, recover the compensation either 
from the principal or the contractor (s. 4 (3)). 

The principal is not to be liable in any case where the accident to 
the contractor's workman occurred elsewhere than on, or in, or about, 
the premises on which the principal has undertaken to execute the 
work, or which are otherwise under his control or management 
(3. 4 (4)). 

The one exception to the liability of the principal to the workmen 



250 EMPLOYEES' LIABILITY 

of his contractor arises where the contract relates to threshing, plough- 
ing, or other agricultural work, and the contractor provides and uses 
machinery driven by mechanical power for the purpose of such work. 
In such a case the contractor alone is liable to pay the compensation to 
any workman employed by him on such work (s. 4 (1)). 

Under the Act of 1897, the principal (there called "undertaker") 
was not liable when the work being done by or under the contractor was 
work merely ancillary or incidental to, and no part of, or process in, the 
trade or business carried on by the principal (see sec. 4 of Act of 1897). 

The section of the new Act makes every person, who for the purposes 
of trade or business contracts for the doing of work which he has under- 
taken to do, liable to pay compensation in respect of any personal 
injury happening to a workman in the employ of the contractor, if such 
injury arises out of, and in the course of, the work. It is immaterial 
now that the work is ancillary or incidental, and no part of, or process 
in, the trade or business carried on by the principal, if the principal has 
undertaken the work in the course of, or for the purposes of, his trade 
or business. See Knight v. Cuhitt, [1902] 1 K B. 31 ; 71 L. J. K B. 65 ; 
85 L. T. 526; Bitsh v. Hmces, [1902] 1 K B. 216; 71 L. J. K B. 68; 
85 L. T. 507. 

If there is one contractor, say, for a whole building, and he enters into 
contracts with other contractors to do a part of the work, he becomes 
liable for all the accidents which occur in the execution of the work, but 
he can claim indemnity from the contractor in whose service the work- 
man to whom he has had to pay compensation was engaged. 

There may be several independent contractors engaged with refer- 
ence to the same building ; e.g. a building owner contracts with several 
tradesmen to build him a house, one contract relating to brickwork, 
another to carpentering, etc. In such a case each contractor is an 
independent person, liable for the accidents of his own workmen, and 
there is no power to resort against the building owner, for ex-hypothesi ; 
he has not undertaken to build the house in the course of, or for the 
purposes of, his trade or business (see observations of the Lord Chancellor 
in Cooper <Sc Crane v. Wright, at p. 324, infra). See cases under sec. 4 of 
the Act of 1897 : Cass v. Butler, [1900] 1 Q. B. 777 ; 69 L. J. Q. B. 362 ; 
82 L. T. 182 ; Cooper v. Davenport, 16 T. L. E. 266 ; Mason v. Dean, Ltd., 
[1900] 1 Q. B. 770 ; 69 L. J. Q. B. 358 ; 82 L. T. 139 ; Percival v. Garim\ 
[1900] 2 Q. B. 406; 16 T. L. E. 396; Cooper & Crane v. Wright, [1902] 
A. C. 302 ; 71 L. J. K. B. 642 ; 86 L. T. 776 ; Wagstaffy. Perks, 1902, 19 
T. L. E. 112; M'Cahe v. Jopling & Palmers Travelling Cradle Co., Ltd., 
[1904] 1 K. B. 222 ; 73 L. J. K. B. 129 ; 89 L. T. 624 ; Stalker v. Wallace, 
1900, 2 F. 1162; 37 S. L. E. 898; Halstead v. Thomson, 1901, 3 R 668; 
38 S. L. E. 473; Patterson v. Lockhart, 1905, 7 F. 954; 42 S. L. E. 755; 
Tojypimj v. Rhind, 1904, 6 F. 666 ; 41 S. L. E. 573 ; Brennan v. Duhliii 
United Tramway Co., 1900, 34 Ir. L. T. E. 113. 

The question was discussed in the House of Lords in the case of 
Cooper & Crane v. Wright, supra, as to the recovery of indemnity by an 
"undertaker" from a contractor where the injury to the contractor's 
workman was occasioned by the negligence or default of the " under- 
taker." The opinion was expressed that in such a case the contractor, 
either in the form of defence or counter-claim, could avoid paying 
indenmity, or recover the indemnity in the form of damages from the 
" undertaker." The question arose, and was considered by Bigham, J., 
in the case of John Greenwood, Ltd., v. Hawkings, 1906, 23 T. L. E. 1. 



EMPLOYERS' LIABILITY 251 

A principal from whom a claim is made, and who contemplates 
claiming indemnity, should not, it is thought, except in a very clear 
case, pay voluntarily ; his best course, where the contractor is not willing 
to indemnify him, is to allow proceedings to be taken against him, and 
brnig the contractor in as a third party in the same proceedings, for the 
purpose of getting indemnity. 

The one exception provided for in the section where liability is not 
to attach to the principal where the accident occurs on his premises, 
appeared first in the Workmen's Compensation Act, 1900, and was 
intended to meet the case of travelling owners of steam threshing 
machines and steam ploughs, who take their machinery, with the 
working and management of which the farmer is generally unac- 
quainted, on to farms for the purpose of threshing or ploughing. In 
such a case it seems right that the liability to his own workmen sliould 
rest entirely on the owner or provider of the machinery. 

It must be carefully noticed that the liability of the principal under the 
section being considered only arises where the accident occurs on, or in, or 
about his premises, or premises on which he has undertaken to work, or 
which are under his control or management. If the principal gives out 
part of the work which he has undertaken, to be performed by the con- 
tractor at his own works, or at any other place away from the premises 
on which the principal is doing the work, or which are under his control, 
no liability arises. 

CONTEACTING OUT. 

An employer is allowed to contract out of the Workmen's Compensa- 
tion Act, 1906, only when, with the consent of the majority of his work- 
men (such consent to be ascertained by ballot), he provides a scheme to 
be substituted for the Act which contains scales of compensation not less 
favourable to the workmen and their dependants than the compensation 
given by the Act. Where the scheme provides for contributions by the 
workmen, it must confer benefits at least equivalent to those contribu- 
tions, in addition to the benefits to which the workmen are entitled 
under the Act (s. 3 (1)). 

This scheme must be certified by the Registrar of Eriendly Societies, 
who, before doing so, must take steps to ascertain the views of the 
employer and workmen {ibid.). 

The certificate may be for a limited period of not less than five years, 
and may be renewed with or without modifications {ibid. (2)). 

No scheme can be certified which contains an obligation upon the 
workmen to join the scheme as a condition of their hiring, or which does 
not contain provisions enabling a workman to withdraw from the 
scheme {ibid. (3)). 

Provision is made by which the registrar may revoke a certificate, 
if the scheme no longer conforms to the Act, or is being violated or not 
fairly administered, or if other satisfactory reasons exist for revoking 
it. As to what shall be done with the funds when a scheme expires or 
is revoked, and generally as to the duty of the employer and the 
registrar, see ibid. (4), (5), (6), (7), and (8). 

By entering into such a scheme in substitution for the Act, the 
workman binds liis dependants as well as liimself, for when the scheme 
is duly certified, the employer is to be liable ** only in accordance with 
the scheme" {ibid. (1)). 

The decision of the managers of such a scheme on any question as to 



252 EMPLOYERS' LIABILITY 

the right to receive the benefits secured by the scheme is not necessarily 
final, i.e. the managers are not in the same position as an arbitration 
committee under clause 1 of the second schedule to the Act {Haworth 
V. Aiulrew Knoides & Sons, Ltd., Accident Society, 1903, 19 T. L. K. 658). 

Where a scheme expires or is revoked, and another scheme is sub- 
stituted for it, the workman is not bound by the new scheme where the 
terms are in any respect different. Before he can be said to have con- 
tracted out of the Act it must be proved that he has accepted the new 
m\\Q\\\Q {Wilson v. Ocean Coal Co., Treharne v. Same, 1905, 21 T. L. R. 621). 

A contractmg-out scheme need not be confined to one employer and 
his workmen, but may include several employers and their workmen 
(8. 3 (1)). 

Although an approved scheme by which a workman contracts out 
of the Act is allowed to be " substituted for the provisions of this Act " 
{ibid.), yet the workman, by accepting it, has exercised his option 
under s. 1 (2) (b), to take compensation under the Act in lieu, not 
only of his rights under the Act itself, but his rights also at common 
law or under the Employers' Liability Act, 1880. This election binds 
his dependants also. It follows that a workman who has accepted an 
approved scheme in place of the provisions of the Act has no power 
to sue his employer for damages for negligence at common law or 
under the Employers' Liability Act, neither have his personal repre- 
sentatives or dependants any such right {Taylor and Others v. Hamstead 
Colliery Co., [1904] 1 K. B. 838 ; 73 L. J. K. B. 469 ; 90 L. T. 363). 

Contracting out hy Croivn Workmen. — Workmen employed by the 
Crown (other than those employed in the naval or military service of 
the Crown) being within the Act, power is given by sec. 9 (2) to the 
Treasury to frame schemes, to be certified by the Registrar of Friendly 
Societies, which may be accepted by Crown workmen in lieu of the 
provisions of the Act, and by warrant laid before Parliament to modify, 
for the purpose of this Act, their warrant made under sec. 1 of the 
Superannuation Act, 1887. 

A scheme under the Workmen's Compensation Act, 1897, in force 
at the commencement of the present Act, viz., July 1, 1907, shall, if 
re-certified by the Registrar of Friendly Societies, have effect as if it 
were a scheme under the present Act (s. 15 (2)). 

The registrar must re-certify any such scheme, if he is satisfied that 
the scheme conforms or has been modified as to conform with the 
requirements of the present Act (ibid. (3)). 

Any scheme under the Act of 1897 which is not re-certified within 
six months from the commencement of the present Act is to be revoked 
{ibid. (4)). 

Duty of Workman to Submit to Medical Examination. 

In addition to the obligation imposed on a workman, who has given 
notice of an accident, to submit himself for examination to the employer's 
medical man (Sched. I. (4), and see ante, p. 240), any workman receiviug 
weekly payments under this Act shall, if required by the employer, 
submit himself for examination by a duly qualified medical practitioner, 
provided and paid for by the employer (Sched. I. (14)). Such examina- 
tion is to be in accordance with the regulations, and at intervals prescribed 
by the Secretary of State by rules to be made for the purpose {iUd. 15). 
(The rules havp not yet been made.) 



EMPLOYERS' LIABILITY 253 

The penalty for refusing to submit to such examination, or obstruct- 
ing it, is that the right to such weekly payments shall be suspended 
until such examination has taken place {ibid. (14)). 

No compensation is now payable during this period of suspension 
{ibid. (20)). 

Wliere the workman has so submitted himself, or has been examined 
by his own medical practitioner, and a report as to workman's condition 
has been furnished, either by the employer to the workman, or vice versd, 
within six days after the examination, then if no agreement can be come 
to as to the workman's condition or fitness for employment, the matter 
may be referred, by the Registrar of the County Court, on an applica- 
tion made by both parties, and on payment of a fee, to a medical referee 
{ibid. (15)). 

It must be observed that this course can only be adopted with the 
consent of both parties. 

In such a case the medical referee must give a certificate as to the 
condition of the workman and his fitness for employment, specifying, 
where necessary, the kind of employment for which he is fit. Such a 
certificate is made conclusive evidence of the matter so certified {ibid.). 

Where the employer and workman cannot agree as to whether and to 
what extent the incapacity of the workman is due to the accident, then 
(subject to any regulations made by the Secretary of State) the same 
procedure may be adopted, as that which may be adopted for ascertaining 
the condition of the workman, i.e. the question whether the incapacity 
for work is due to the accident, may, with consent of both parties, be 
referred to a medical referee {ibid.). 

The right to compensation, or to take or prosecute proceedings under 
the Act, is suspended in the case of a workman who refuses to submit 
himself to the medical referee, or who obstructs the examination, until 
proper examination has taken place {ibid.). 

The manner and forms to be used in reference to a medical referee, 
such as above dealt with, are to be prescribed by rules of Court. (These 
rules are not yet published.) 

Under the Act of 1897 (Sched. I. (11)) it was at one time thought 
that a workman who was dissatisfied with the certificate, as to his con- 
dition, given by the employer's medical man, was compelled to go before 
tlie medical referee, but the Court of Appeal decided, in the cases of 
Neagle v. Nixon s Navigation Co., and Edwards v. Cktesty Keen and Nettle- 
folds, Ltd., [1904] 1 K. B. 339 ; 73 L. J. K. B. 165 ; 90 L. T. 149, that he 
was not bound to adopt this course. 

The Scottish decisions on this point were inconsistent witli one 
another. See Davidson v. Summer lee Iron and Steel Co., 1903, 5 F. 991 ; 
40 S. L. R. 764 ; Niddrie and Benhar Coal Co. v. M'Xay, 1903, 5 F. 1121 ; 40 
S. L R. 798 ; Strannigan v. Baird & Co., 1904, 6 F. 784 ; 41 S. L. R. 609. 

Under the present Act it appears that it is optional, both on the 
part of the employer and the workman, to submit to the medical referee, 
except where, under Sched. II. (15), a matter which seems material to 
any question arising in the arbitration is submitted by a committee, 
arbitrator, or judge (subject to regulations) to a medical referee for report. 

As to what is obstructing a medical examination, see Finnic & Son v. 
Dimcan, 1904, 7 F. 254 ; 42 S. L. R. 192 ; Bryce v. Corinor, 1904, 7 F. 193 ; 
42 S. L. R. 154 ; W. Baird v. Kane, 1905, 7 F. 461 ; 42 S. L. R. 347. As 
to finality of the certificate of the medical referee, Johnstone v. Cochran & 
Co., 6 F. 854 ; 41 S. L. R. 644. 



154 EMPLOYERS' LIABILITY 



Medical Referees, Duties of. 

Tlie Secretary of State may appoint such legally qualified medical 
practitioners to be medical referees for the purposes of this Act, as he 
may, with the sanction of the Treasury, determine. Such medical 
referees are to be paid out of monies provided by Parliament (s. 10 (1)). 

A medical referee interested in a case is not allowed to act in tliat 

case (ibuL). 

A medical referee, when appointed, may have various duties to 
perform. He may have to decide, where the case is referred to him 
under Sched. I. (15), on the application of both parties, both as to the 
condition of the workman and his fitness for employment, and for what 
kind of employment he is tit. Under the same clause, with consent of 
both parties, he may have to decide whether, or to what extent the incapa- 
city of the workman is due to the accident. He may have to determine 
under clause 18 of Sched. L, in a case where a workman receiving a 
weekly payment ceases to reside in the United Kingdom, whether or 
not the incapacity resulting from the injury is likely to be of a per- 
manent nature. He may have to sit with a County Court judge, trying 
cases under the Act, as an assessor (Sched. II. (5)). 

He may have to report to a committee, arbitrator, or judge on any 
matter which seems material to any question arising in an arbitration 
under the Act (Sched. II. (15)). 

Arbitration. 

" If any question arises in any proceedings under this Act as to tlie 
liability to pay compensation under this Act (including any question as 
to whether the person injured is a workman to whom this Act applies), 
or as to the amount or duration of compensation under this Act, the 
question if not settled by agreement shall, subject to the provisions of 
the first schedule to this Act, be settled by arbitration in accordance 
witli the second schedule to this Act " (s. 1 (3)). 

No action at law^ can be brought under any circumstances to recover 
the compensation given by the Act. Arbitration proceedings may be 
instituted with reference to any of the following matters : — 

(a) The liability to pay compensation (s. 1 (3)). 

(h) The question whether the person injured is a workman within 
the Act (ibid.). 

(c) The amount or duration of the compensation (ibid.). 

(d) Any question [as to who are dependants (Sched. I. (8)), or as to 
the amount of compensation payable to a dependant. 

(e) The revision of weekly payments (Sched. I. (16)). 
(/) The redemption of weekly payments (Sched. I. (l/)). 

(^) The right to and amount of an indemnity claim by the princdpal 
from the contractor under sec. 4. 

(A) By consent, any question as to the liability of a stranger to 
indemnify the employer from whom compensation has been recovered. 

It was decided in Powell v. Main Colliery Co. (ante, p. 240) that the 
employer could institute arbitration proceedings, when the workman 
haa made a claim for compensation which lias not been properly 
prosecuted. 

The Arbitration Tribunals. — There are four tribunals which have 



EMPLOYERS' LIABILITY 255 

jurisdiction to deal with matters which by the Act are to be settled 
by arbitration: — 

1. A committee representative of an employer and workman (Sched. 

II. (I))- 

2. A single arbitrator agreed on by the parties {ibid. (2)). 

3. The County Court judge of the district (ibid.). 

4. In England, an arbitrator appointed by the County Court judge, 
with the authority of the Lord Chancellor (ibid. 3). 

Even where a committee exists with jurisdiction to settle disputes 
between employer and workmen, either party can oust this jurisdic- 
tion by objecting in writing before the committee meets to consider 
the question (Sched. 11. (1)). A committee may refer the matter to 
arbitration (ibid.). 

Power is now given to the Secretary of State, by Sched. II. (16), 
eitlier conditionally or unconditionally, to confer on any committee 
representative of an employer and his workmen, as respects any matter 
in which the committee act as arbitrators, or which is settled by agree- 
ment submitted to and approved by the committee, all or any of the 
powers conferred by this Act exclusively on County Courts or judges 
of County Courts, and may by the order provide how and to whom the 
compensation money is to be paid in cases where, but for the order, the 
money would be required to be paid into Court, and the order may 
exclude from the operation of provisoes (d) and (e) of paragraph (9) of 
this schedule agreements submitted to and approved by the committee, 
and may contain such incidental, consequential or supplemental provi- 
sions as may appear to the Secretary of State to be necessary or proper 
for the purposes of the Order. These powers, which will materially 
increase the utility of an arbitration committee, have not yet been 
conferred. 

If a single arbitrator is selected, he derives his jurisdiction from the 
consent of the parties (Sched. II. (2)). 

The Arbitration Act, 1889, does not apply to such an arbitration, 
but such an arbitrator may submit a question of law to the County 
Court judge (Sched. II. (4)). 

The usual arbitration tribunal is the County Court judge of the 
district, but if the parties reside in different districts, then the district 
prescribed by rules of Court (ibid. 11 ; see The King v. His Honour 
Judife Owen and Robertson, [1902] 2 K. B. 436; 71 L. J. K. B. 770; 87 
L T. 298). 

"County Court," "judge of County Court," "registrar of County 
Court," "plaintiff," and "rules of Court," as respects Scotland, mean 
respectively Sheriff Court, sheriff, sheriff-clerk, pursuer, and Act of 
Sederunt (s. 13). 

Arbitration procedure in the County Court under the Act is regulated 
by rules and forms made by a committee of County Court judges, and 
approved by the Lord Chancellor. 

(The rules and forms to regulate procedure under the present Act in 
the County Court, or before an arbitrator appointed by the County 
Court judge, are not yet published.) 

The arbitrator appointed by the County Court judge has all the 
powers of a County Court judge, and conducts the arbitration subject 
to the same rules and forms (ibid. (3), (12)). 

The duty of a County Court judge under the Act, or of an arbitrator 
appointed by him, shall, subject to rules of Court, be part of the duties 



256 EMPLOYEES' LIABILITY 

of the County Court, and the officers of the Court shall act accordingly 
{ibid.). 

No Court fee, except under Sched. I. (15) {i.e. where the medical 
referee is called in by both parties ; see antCy p. 253), is payable in respect 
of any proceedings by or against a workman under the Act prior to th< 
award (Sched. II. (13)). 

If an arbitrator dies, or refuses, or becomes incapable of acting, th* 
County Court judge may, on the application of any party, appoint ; 
new arbitrator {ihicl. (8)). 

An arbitrator having once made his award is functus officio, and 
cannot grant a new trial, neither has he jurisdiction to review his 
award unless a change of circumstances has taken place, but see no\\ 
Sched. I. (9), ante, p. 247. 

There must be a dispute between the workman and the employer 
involving some question under the Act before he obtains jurisdiction 
to entertain proceedings under the Act {Field v. Longden & Sons, [1902] 
1 K. B. 47 ; 71 L. J. K. B. 120 ; 85 L. T. 571 ; Jones v. Great Central 
Rhj. Co., 1901, Minton Senhouse Reports, vol. iv. 23 ; Dunlop v. Eanlcin, 
1901, 4 r. 203; 39 S. L. R. 146; Caledon Shipbuilding Co. v. Kennedy, 
1906, 8 E. 960 ; 43 S. L. R. 687 ; Gotirlay Brothers v. Sweeney, 1906, 8 Y. 
965 ; 43 S. L. R. 690). 

An arbitrator cannot lay down a general rule as to the compensation 
he will award ( Webster v. Sharpe, ante, p. 247). 

Procedure in Arbitration in County Court, or Before Arbitratok 
Appointed by County Court Judge. 

All arbitrations under the Workmen's Compensation Act are 
regulated by the Act itself, and except where the arbitration tribunal 
is selected by the parties themselves, by the rules and forms which 
have been framed thereunder. 

Rules of a somewhat voluminous kind were made under the Act ot 
1897 in the years 1897, 1899 and 1900. These rules may be cited 
as the Workmen's Compensation Rules, 1897 to 1900. 

Eor procedure to be adopted in a claim in the County Court, oi 
before an arbitrator appointed by the County Court judge under the 
Workmen's Compensation Acts, 1897 and 1900 (see Ruegg's Employers 
Jjiability and Wm^hmens Compensation, 6th ed., ch. x., and Rules ana 
Forms, pp. 473-542). 

(Tlie rules and forms under the present Act have not yet been 
published.) ! 

Costs. I 

Tlie costs of all arbitration proceedings and proceedings connectecj 
therewith are in the discretion of the arbitrator, subject, as respecti! 
the County Court judge and an arbitrator appointed by him, to rulef! 
of Court. In no case are the costs to exceed the limit prescribed bv 
rules of Court. They are to be taxed, and the taxation may be reviewtn 
by the County Court judge (Sched. II. (7)). 

The solicitor or agent of the person claiming compensation is no 
entitled to recover from him any costs in respect of the proceeding.s, o 
to claim a lien in respect of any such costs, or deduct them from th( 
sum awarded or agreed as compensation, except such sum as may b«l 
awarded by the arbitrator on an application made by him, either by th(' 



EMPLOYEES' LIABILITY 257 

person claiming compensation, or by his solicitor or agent for that 
purpose. Such sum is to be subject to taxation and to the scale of 
costs prescribed. 

Any sum awarded as compensation (unless paid into Court) is to 
be paid on the receipt of the person to whom it is payable under any 
agreement or award. 

The arbitrator has no jurisdiction to make a successful respondent 
pay the costs of the applicant {Jones v. Great Central Ely. Co., ante, 
p. 256 ; Andrew v. Go^ove, 1902, 18 T. L. E. 455). He cannot lay down a 
general rule as to costs {Rightj v. Cox, [1904] 2 K. B. 208 ; 73 L. J. K. B. 
690; 91 L. T. 72), but notwithstanding the provision (supra) as to 
taxation, he may award a lump sum for costs (Wetland v. Great 
Western Ely. Co., 1900, 16 T. L. E. 297). 

Appeaeance at Arbitration. 

Rules of Court may make provision for the appearance in any 
arbitration under this Act of any party by some other person (Sched. 
II. (6)). 

Eegistration of Award or Memorandum. 

" Where the amount of compensation under this Act has been ascer- 
tained, or any weekly payment varied, or any other matter decided under 
this Act, either by a committee or by an arbitrator, or by agreement, a 
memorandum thereof shall be sent, in manner prescribed by rules of 
Court, by the committee or arbitrator, or by any party interested, to the 
Registrar of the County Court, who shall, subject to such rules, on being 
satisfied as to its genuineness, record such memorandum in a special 
register without fee, and thereupon the memorandum shall for all 
purposes be enforceable as a County Court judgment " (Sched. II. (9)). 

Such a memorandum can be enforced even by a committal order 
under the Debtors Act, 1869, s. 5 (Bailey v. Plant, [1901] 1 Q. B. 31; 
"1 L. J. Q. B. 63 ; 83 L. T. 459 ; and see W. C. E. (under Act of 1897) 
IT. 49 (a), 49 (b)). 

The registration of the memorandum is accompanied by the following 
provisions : — 

(a) It is not to be registered until seven days after notice to the 
parties interested (ibid.). 

(b) Where the workman seeks to record the memorandum, and the 
employer objects and proves that the workman has returned to work 

md is earning the same wages that he did before the accident, it is only 
: be recorded, if at all, on such terms as the County Court judge thinks 
lust (ibid.). 

(c) The County Court judge may rectify the register at any time 
(ibid.). 

(d) The registrar may, on any information he thinks sufficient, refuse 
to register a memorandum of agreement as to redemption of a weekly 
payment by a lump sum, or an agreement as to compensation payable to 
a person under any legal disability, or to dependants, if he thinks the 

um or amount of the compensation is inadequate, or that the agi'eement 
!iad been obtained by fraud or undue influence, or other improper means. 
I n this case the matter is referred to the judge, who, in accordance with 
lules, shall make such order (including an order as to any sum already 
paid under the agreement) as he may think just (ibid.). 

VOL. V. 17 



H 



258 EMPLOYEES' LIABILITY 

(e) Where any such memorandum of agreement as above (d) has 
been registered, the judge may, within six months of the registration, 
order that the record may be removed from the register, if he is satisfied 
that it was obtained by fraud or undue influence, or other improper 
means, and may make such order (as under (d) supra) as he may think 

just. 

If an agreement for redemption of a weekly payment by a lump sum 
is not registered in accordance with the Act, it shall not, nor shall the 
sum payable under the agreement, exempt the person by whom the 
weekly payment is payable from liability to continue to make that 
weekly payment, and an agreement as to compensation to be paid to a 
person under legal disability, or to dependants, if not so registered, shall 
not, nor shall the payment of the sum payable under the agreement. 
exempt the person by whom the compensation is payable from liabilit} 
to pay compensation, unless in either case he proves that the failure to 
register was not due to any neglect or default on his part (Sched. 11. (10)). 

These provisions, enabling the registrar to refuse to register a memo- 
randum of agreement if he thinks it is unfair to the workman, and 
enabling the judge to remove it from the register, and the provision 
that an unregistered memorandum of agreement shall not exempt the 
employer from his liability to pay compensation, are new. 

It has been decided in Scotland that a petition may be entertained 
to register an oral agreement {Cochrane v. Traill, 1900, 1901, 3 E. 27; 
38 S. L. K. 18, 662, 848). The memorandum must be registered though 
the circumstances have altered {Blake v. Midland Ely. Co., [1904] 1 K. B. 
503 ; 73 L. J. K. B. 179 ; 90 L. T. 433), and there is no limit to the time 
within which the memorandum can be registered {Cochrane v. Traill, 
supra ; Marno v. Workman, 1899, 34 Ir. L. T. R. 14). 

There is probably no appeal from the decision of a County Court 
judge ordering or refusing to allow a memorandum to be registered. In 
Scotland this has been held to be to a great extent a ministerial duty 
iCammick v. Glasgoiv Iron & Steel Co,, 1901, 4 F. 198 ; 39 S. L. K. 
138 ; Macdonald v. Fairfield Shiphtilding Co., 1905, 8 E. 8 ; 43 S. L. R. 1 ; 
Binning v. Easton & Sons, 8 E. 407 ; 43 S. L. R. 312; Sinclair v. Zoch- 
qelly Iron Co., 1906, 44 S. L. R. 2 ; and see Fife Coal Co. v. Davidson 
1906, 44 S. L. R. 108). 

Appeal. , 

There is no appeal from the decision of a committee or a single! 
arbitrator appointed by the parties themselves, but such committee 0]| 
arbitrator may, if they or he think fit, submit a question of law to th(| 
County Court judge. There is no power to make a committee or singh) 
arbitrator do so. There is no appeal, moreover, to the Court of Appeal 
from the decision of an arbitrator appointed (in England) by a Count}! 
Court judge {Gibson v. Wormald & Walker, [1904] 2 K. B. 40; 73 L. J. K B 
491 ;^ 91 L. T. 7). 

The appeal from the County Court judge is direct to the Court o 
Appeal, and must be brought in accordance with the rules of the Suprenn 
Court, framed to regulate appeals under the Act (see R. S. C, Order 58 
r. 20). 

It is only a question of law which is appealable (Sched. 11. (4)). A 
to what is a question of law, see judgments in the House of Lords ii 
Hoddinott v. Newton, Chambers & Co., Ltd., [1901] A. C. 49 ; 70 L. J. Q. T 
150; 84 L T. 1. It was held under the Act of 1897 that an appea 



EMPLOYEES' LIABILITY 259 

would only lie to the Court of Appeal in such matters as arose in the 
arbitration, and that appeals in other matters under the Act (where 
capable of being appealed at all) must be brought to a Divisional Court 
{Leech v. Life and Health Assurance Association, [1901] 1 K. B. 707 ; 70 
L. J. K. B. 544 ; 84 L. T. 414 ; Morris v. Northern Eniploijers Mutual Co., 
[1902] 2 K. B. 165 ; 71 L. J. K. B. 773 ; 86 L. T. 748 ; Kniveton v. Same, 
[1902] 1 K. B. 880 ; 71 L. J. K. B. 588 ; 86 L. T. 721 ; Righy v. Cox, 
[1904] 1 K. B, 358 ; 73 L. J. K. B. 80 ; 89 L. T. 717 ; Keane v. Nash, 1903, 
88 L T. 790 ; 19 T. L. E. 419). 

Under the present Act an appeal is given not only on a question of 
law, but where a County Court judge " gives any decision or makes any 
order under this Act " (Sched. IL (4)). Probably all appeals will now go 
to the Court of Appeal. 

Securitij for Aiipeal. — Security for the costs of the appeal is generally 
ordered on application, supported by affidavit stating that the appellant 
will be unable to pay the costs of the appeal. The amount of security 
is usually £15. It may be required though the workman appealing is 
supported by a trade union {M'Laughlin v. Clayton, Times, February 28, 
1899; Haddock v. Humphrey, Times, August 1, 1899; see Harwood 
V. Ahrahams, [1901] 2 K. B. 304 ; 70 L. J. Q. B. 746 ; 84 L. T. 857). The 
Court may dispense with the security in a proper case {Huhhcdl v. Everett 
& Sons, 1900, 16 T. L. E. 168; Shea v. Drolenvaux, 1903, 88 L. T. 679; 
19 T. L. E. 473). Application should be made to the other side to give 
the security before an application is made to the Court of Appeal (Stan- 
land V. North-Eastern Steel Co., 1906, 23 T. L. E. 1). The security must 
l;»e given within fourteen days of the date of the order (see remarks of 
Vaughan Williams, L.J., 18 T. L. E., at p. 537). 

Apparently the rule as to giving security for costs is not followed 
in Ireland (Stormont v. Workman, 1899, 33 Ir. L. T. & S. J. 165). The 
appellate Court may remit the award to the arbitrator for further 
consideration (Bae v. Eraser, 1 F. 1017; 36 S. L. E. 782). As to costs 
in such a case {Murin v. Calderwood, 1899, 1 F. 634 ; 36 S. L. E. 453). 
The Court of Session has on several occasions ordered an arbitrator to 
state a case on a question of law raised in the arbitration {Glasgow & 
S.-JV. Ely. Co. V. Laidlaw, 1900, 2 F. 708; 37 S. L. E. 503; Hohhs & 
Samuel v. Bradley, 1900, 2 F. 744; 37 S. L. E. 532 ; Caledon Shipbuilding 
Co. V. Kennedy, 1906, 8 F. 597; 43 S. L. E. 430). In Scotland an 
irbitrator can now be required by either party to state a case (Sched. II. 
(17) {b)). The appellant may appeal informd pau-peris, and the respondent 
may, in a proper case, defend the appeal in formd pauperis {Handford v. 
George Clarke, Ltd., 76 L. J. K. B. 76). 

Appeal to the House of Lords. — An appeal lies in England from the 
decision of the Court of Appeal without leave to the House of Lords. 

This appeal is provided by sec. 3 of the Appellate Jurisdiction Act, 
1876, which enacts that, " subject as in this Act mentioned an appeal 
shall he to the House of Lords, from any order or judgment of any of the 
Courts following, that is to say, (1) of Her Majesty's Court of Appeal in 
England." 

Many cases, under the Workmen's Compensation Act, 1897, in 
England have been taken to the House of Lords. 

It was decided in MKinnon v. Barclay, Curie & Co., [1901] A. C. 269, 
3 F. (H. of L.), 1 ; 38 S. L. E. 611, that no appeal would lie from the 
Court of Session to the House of Lords in a workman's compensation 
^ase, in consequence of the wording of clause 14 (c) of the second 



260 EMPLOYEES' LIABILITY 

schedule to the Act of 1897. Under the present Act, by clause 17 (b) 
of the second schedule, an appeal is given from either division of the 
Court of Session to the House of Lords. It was also considered that 
no appeal would lie from the Court of Appeal in Ireland to the House 
of Lords, but by the present Act (Sched. IL (18)) an appeal is given to 
the House of Lords. In any appeal to the House of Lords security 
for costs is required to be given by the appellant, unless he can obtain 
permission from a committee of the House to prosecute the appeal 
in foinnd pauperis. 

Miscellaneous Provisions. 

Every employer in any industry to which the Secretary of State may 
direct the section to apply, shall, on or before such day in every year as 
the Secretary of State may direct, make to him a correct return specify- 
ing the number of injuries in respect of which compensation has been 
paid by him during the previous year, and the amount of such com- 
pensation, together with such other particulars as to compensation as 
the Secretary of State shall direct. In default he is liable to a fine not 
exceeding £5 (s. 12 (1)). 

Such regulations must be laid before both Houses of Parliament as 
soon as may be after they are made {ibid. 2). 

Nothing in the Act is to affect any proceeding for a fine under the 
enactments relating to mines, factories, or workshops, or the application 
of any such fine (s. 1 (5)). 

Under the Act of 1897, if any fine, or part thereof, had been applied 
for the benefit of the person injured, the amount had to be taken into 
account in estimating the compensation under that Act. This is not 
so now. 

Any contract (except a certified scheme of contracting out under the 
"Workmen's Compensation Act, 1897) existing at the commencement of 
this Act (July 1, 1907), whereby a workman relinquishes any right to 
compensation from the employer for personal injury arising out of and 
in the course of the employment, shall not for the purposes of this Act 
be deemed to continue after the time at which the workman's contract 
of service would determine if notice for the determination thereof were 
given at the commencement of this Act (s. 15 (1)). 

In Scotland where an action is brought by a workman against an 
employer for personal injury under the Employers' Liability Act, 1880,. 
or alternatively at common law or under the Employers' Liability Act, 
1880, it is not to be removed to the Court of Session, nor appealed, 
otherwise than by an appeal on a question of law, as provided under thia 
Act in the second schedule. 

The remuneration of an arbitrator appointed by a County Court 
judge in England shall be paid out of monies provided by,Parliament in 
accordance with regulations made by the Treasury (s. 10 (2)). 

Provision is made for the investment of compensation in the Post 
Office Savings Bank, or in the purchase of an annuity from the National 
Debt Commissioners, or as a deposit in the Post Office in the name of 
the Kegistrar of the County Court, notwithstanding the statutes or 
regulation respecting the limits of such deposits in the Post Office ; also 
for the payment out of such monies, and for the deposit of monies in a 
Post Otlice Savings Bank by a person deriving benefit from money 
invested under the Act, where the amounts together exceed the limit 
allowed by the statute or regulations (Sched. IL (10), (11), (12), (13)). 



EMPLOYEES' LIABILITY— FORMS 261 

Rules of Court may be made both for any purpose for which this Act 
authorises rules of Court to be made, and also generally for carrying into 
effect this Act so far as it affects the County Court, or an arbitrator 
appointed by the judge of the County Court, and proceedings in the 
County Court or before any such arbitrator, and such rules may in 
England be made by the five judges of the County Courts appointed for 
making the rules under sec. 164 of the County Courts Act, 1888, and 
when allowed by the Lord Chancellor, as provided by that section, shall 
have full effect without any further consent (Sched. 11. (12)). 

In the application of this schedule to Scotland : — 

(a) County Court judgment as used in paragraph (9) of this schedule 
means a recorded decree-arbitral (Sched. II. (17) (a)). 

(h) Any application to the sheriff' as arbitrator shall be heard, tried, 
and determined summarily in the manner provided by sec. 52 of the 
Sheriff Courts (Scotland) Act, 1876, save only that parties may be 
represented by any person authorised in writing to appear for them 
{ihicl (h)). 

(c) Paragraphs (3), (4), and (8) shall not apply (ibid. (c)). 

In the application of the second schedule to Ireland the expression 
"judge of County Court" shall include the recorder of any city or 
town, and an appeal shall lie from the Court of Appeal to the House of 
Lords (Sched. 11. (18)). 

The Act may be cited as the Workmen's Compensation Act, 1906 
(s. 17). 



Si 



FORMS. 

1. Notice of Injury under Employers' Liability Adj 1880. 



Employers' Liability Act, 1880. 
I hereby give you notice that I, A. B. of , in the 

county , was injured whilst in your service on the 

day of 19 , in consequence of a defect in your machinery, 

to wit 

Dated the day of 19 . 

(Signed) A. B. 
To Mr. C. D. of 

or 
Sir, — 

As solicitor on behalf of A. B. of , in the county 

of ,1 hereby give you notice under the Employers' Liability 

Act, 1880, that the said A. B. was injured on the day of 

19 , in the following manner 

Dated the day of 19 . 

{Signed by solicitor.) 
To Mr. C. D. 
(The employer). 

or 

Gentlemen, — 

Employers' Liability Act, 1880. 

I beg to give you notice that A. B. of , in the county 

of , was on the day of 19 severely 



262 EMPLOYEES' LIABILITY— FORMS 

injured whilst engaged at your works at . The cause of 

the injury was 

The said A. B. was at the time of the injury a workman in your 
employment, and lawfully engaged in his employment. 

Dated the day of 19 . 

(Signed) 
To Co., Ltd. « 

I 

2. Farm of Particulars of Demand under the Employers^ Liability Act, 1880. 
In the County Court. 

Between A. B., plaintiff, and 
C. D., defendant. 

Particulars. 

The plaintiff claims under the Employers' Liability Act, 1880, 
damages for injuries sustained by him on the day of 

19 , at the defendant's works, by reason of a defect in the condition 
of the ways, works, machinery, or plant connected with or used in the 
defendant's business, to wit 

The defect before mentioned arose, or had not been discovered or 
remedied, owing to the negligence of the defendant, or of E. F., a person 
entrusted by him with the duty of seeing that the ways, works, 
machinery, or plant were in proper condition ; or by reason of the 
negligence of the said E. F., a person in the service of the defendant, 
and entrusted by him with superintendence, or to whose orders the 
plaintiff was bound to conform, and did conform. 

The said E. F. was guilty of negligence in ordering or allowing, &c. 

The plaintiff will also rely upon any further defects or negligence 
that may become known,^ or arise during the trial of this action. 

And the plaintiff' claims £ 



I 



Dated the day of 19 

Yours, &c., 

To the defendant and Messrs. G. H. & Co., 
his solicitors. 



(Plaintiff's solicitoi'.) 



or 
In the County Court. 

Between A. B., plaintiff, and ^ 

C. D., defendant. 

Particulars. 
The following are particulars of plaintiff's claim : — 
The plaintiff being on the day of 19 engaged on 

work for the defendant, under a contract of service made with him, was 
on such day injured by the breaking of a part of the defendant's 
machinery or plant, viz. , whereby the plaintiff was struck 

and seriously hurt, and has been prevented following his occupation, and 
has lost his wages, and been put to expense, and suffered much pain. 



EMPLOYEES' LIABILITY— FOEMS 263 

The machinery or plant in question was in a defective condition, and 
the accident was caused by the defective condition. Such condition 
arose, or could with proper care have been discovered or remedied by the 
defendant, or by the person (to the plaintiff unknown) entrusted by the 
defendant with the duty of seeing that his machinery or plant was in 
proper condition. 

Particulars of special expenses and loss : — 

(a) 

(J) 
And plaintiff claims £ 

Dated the day of 19 . 

(Signed) 
To the defendant and his solicitors. 



3. Foi'm of Particulars of Demand under Employers^ Liability Ad, with 
Claim added at Common Law. 

In the County Court. 

Between A. B., plaintiff, and 
C. D., defendant. 

Particulars. 

The plaintiff claims under the Employers' Liability Act, 1880, 
for that whilst in the defendant's employment as a workman on the 
day of 19 he was injured in the following 

manner, viz. 

The injury was due to the negligence of one E. F., a manager, fore 
man, or overlooker in the service of the defendant, who negligently 
ordered the plaintiff to [or who failed to see that the plant 

was in a safe condition, or omitted to give proper orders as to ]. 

And the plaintiff claims £250. 

Alternatively, the plaintiff sues the defendant, alleging that the 
injury aforesaid was caused by the negligence of the defendant him- 
self in not providing proper and competent persons to manage and 
control the work. 

And the plaintiff (alternatively) claims £100. 

Dated this day of 19 . 

(Signed) 
To the defendant and G. H., 
his solicitor. 



4. Form of Particulars of Demand under Employers' Liability Act and the 
Fatal Accidents Act, 9 c& 10 Vict. c. 93 ; 21 & 28 Vict. c. 95. 

In the County Court. 

Between A. B. (widow of G. B.), and D. B., E. B., and F. B. (the 
children of the said G. B., deceased), plaintiffs ; and 
C. D., defendant. 



264 EMPLOYEES' LIABILITY— FOKMS 

Particulars of Demand. 

The plaintiffs claim £500 damages for the death of G. B., who was 
killed on the day of 19 , by falling from a scaffold 

while working for the defendant as a stone mason at 

The said scaffold formed part of the plant used by the defendant in 
his business, and was defective owing to the negligence of the defendant's 
foreman, E. F., who was entrusted by the defendant with the duty of 
seeing that the plant was in proper condition. 

The action is brought by the said plaintiff, A. B., as executrix of the 
last will of the said C. B., deceased, for the benefit of herself as the wife 
of the said C. B. deceased, and by the plaintiffs, D. B., E. B., and F. B. 
(by the said A. B., as next friend), for their benefit, as the children of 
the said G. B., deceased. 

Dated the day of 19 . 

(Signed by solicitor.) 

5. Forms of Special Defence. 
In the County Court. 

Between A. B. (widow of G. B.), and D. B., E. B., and F. B. (the 
children of the said G. B., deceased), plaintiffs ; and 
C. D., defendant. 

Take notice that the defendant intends at the hearing of this action 
to give in evidence and rely upon the following ground of defence : — 

That no notice of injury was given to the defendant, pursuant to 
43 & 44 Vict. c. 42, s. 4 ; 

or 

That the claimant is barred by sec. 4 of 43 & 44 Vict. c. 42 ; 

or 

That the defendant was on the day of 19 

adjudged a bankrupt, and the claim is one proveable in bankruptcy. 

6. Form of Application f&r New Trial in Actim under the Employers' 

Liability Act. 
In the County Court of 

A. B., plaintiff, and 
C. D., defendant. 
Take notice that on the day of an application 

will be made on behalf of the plaintiff {or defendant) at tjje sitting of the 
Court for an order directing that the verdict and judgment entered 
herein on the day of 19 may be set aside, and that 

a new trial be ordered between the parties on the following grounds : — 
That the verdict was against the weight of evidence. 

Dated the day of 19 . 

A. B., 

(Solicitor to the plaintiff or defendant). 
To the Registrar and C. B., the defendant 
(or plaintiff). 



w 



EMPLOYEES' LIABILITY— FORMS 265 

7. Foim of Notice of Appeal in Action under Employers' Liability Act. 

In the High Court of Justice 

(King's Bench Division). 

On Appeal from the County Court. 

Between A. B., plaintiff, and 
C. D., defendant. 

Take notice that this honourable Court will be moved on the 
day of 19 , or so soon thereafter as counsel can be heard, by 

Mr. , of counsel for the defendant, for an order directing that 

the verdict and judgment entered herein on the day of 

19 may be set aside, and judgment entered for the defendant, or 
that a new trial may be had between the parties on the following 
grounds : — 

[Here set out fully grounds of appeal.'] 

Dated the day of 19 . 

(Signed) 
To the plaintiff and E. F., 
his solicitor. 



Forms under the Workmen's Compensation Act, 1906. 

{Fm-ms for use in the County Courts under the Act (?/1906 are not yet 
published.) 

1. Notice of Injury. 
Sir,— 

Workmen's Compensation Act, 1906. 

In pursuance of the Workmen's Compensation Act, 1906, I hereby 
give you notice that A. B. of , in the county of , 

was on the day of 19 injured at , 

in consequence of 

The said injury arose out of, and in the course of, his employment. 

Dated the day of 19 . 

(Signed) 



To the employer. 



or 



Notice of Injury. 
Sir,— 

I am requested to give you notice on behalf of A. B. of » 

in the county of , that the said A. B. received personal injury 

by accident arising out of, and in the course of, his employment in your 
service on the day of 19 . 



266 EMPLOYEES' LIABILITY— FOKMS 

The accident was caused in the following manner :— 

This notice is given in pursuance of sec. 2 of the Workmen's Com- 
pensation Act, 1906. 

Dated the day of 19 . 

(Signed) 

To the employer. 

2. Notice of Injury by Seaman, to be Served on a Captain. 

Sir,— 

I hereby give you notice that I, A. B. , usually residing at 

, in the county of , until lately (or now) serving 

as a member of the crew of the ship " ," of which you are the 

captain, on the day of 19 met with an accident on 

board the ship (or whilst ashore, at ). The accident was 

caused in the following manner [set out cause of accident], and arose 
out of, and in the course of, my employment. 

This notice of injury is given under the Workmen's Compensation 
Act, 1906. 

Dated the day of 19 . 

(Signed) 
To C. D., 

Capt. of ship " 

3. Notice of Disablement or Suspension Due to Industrial Disease. 
Sir,— 

Pursuant to the Workmen's Compensation Act, 1906, I, A. B. of 
, in the county of , hereby give you notice that I 

have been disabled (or suspended) from following my occupation in your 
employment (or the employment in which I was formerly engaged in 
your service), owing to my having contracted in the course of such 
employment the following disease [set out disease]. 

My disablement (or suspension) commenced on the day 

of 19 . 

Dated the day of 19 . 

(Signed) 
To {the last employer). 

4. Notice of Death due to Industrial Disease. 
Sir,— 

Workmen's Compensation Act, 1906. 

In pursuance of the above statute, I hereby give you notice that 
•A.. B. , of , in the county of , contracted, whilst 

in your employment, the following disease, viz. [here insert disease]. The 
said A. B. died from the effects of the said disease on the day 

of 19 . 



ENABLING STATUTE 267 

The said disease arose out of, and in the course of, the employment 
by you of the said A. B. 

Dated the day of 19 . 

(Signed) 

To {the last employer). 

5. Claim for Compensation. 
Sir,— 

Workmen's Compensation Act. 

I beg herewith to claim from you compensation in accordance with 
the terms of the above statute at the rate of 50 per cent, of my average 
weekly wages, amounting to £ weekly, from the day of 

until my incapacity caused by the personal injury shall cease, 
in respect of the accident which happened to me in the course of my 
employment on the day of 19 , and of which 

notice as required by statute was given you on the day of 

19 . 

Dated the day of 19 . 

(Signed) 
To {the employer). 

Claim for Compensation in Case of Death. 
Sir,— 

"Workmen's Compensation Act, 1906. 

I hereby give you notice that A. B., and C. D., and E. F. of , 

in the county of , being the dependants upon the earnings of 

G. H. of , in the county of , recently a workman 

in your employ, and who received personal injury arising out of, and in 
the course of, his employment on the day of 19 > 

from which injuries he died on the day of 19 {or 

who contracted in your employment, and in the course of his employ- 
ment, the following disease [set out disease], from which disease he died 
on the day of 19 ), claim compensation under the 

above statute in respect of such death. 

And please take notice that the sum claimed as compensation in 
respect of the death of the said G. F. is a sum equal to three years' 
wages of the said G. F. (w three years' average wages of such a work- 
man as the said G. F., employed in the same work in the same district ; 
01' as a minimum, £150). 

Dated the day of 19 . 

(Signed) 
To {the employer.) 



Enabling^ Statute. — An enabling statute is a statute which 

makes it lawful to do something which would not otherwise be lawful. 

uch statutes or Acts are passed for a variety of purposes; for instance, 

' authorise the taking of land compulsorily to carry out some public 



268 ENCLAVE 

work, or to legalise what would otherwise be a public or private 
nuisance. In the Princes Case (8 Eep. 16 J) it was pointed out that 
a course of inheritance which is against the rules of the common law 
cannot be created by charter without the force and strength of an Act 
of Parliament. Where the legislature gives power to a public body 
to do anything of a public character, the legislature means also to give 
to the public body all rights without which the power would be wholly 
unavailable ; although such a meaning cannot be implied in relation to 
circumstances arising accidentally only. See In re Dndley Corporation, 
1882, 8 Q. B. D. 93, where it was held that a sanitary authority, 
which by statute had authority as against landowners to construct 
sewers, and a duty in favour of landowners to maintain them, were 
implicitly entitled to subjacent support to the sewers from lands, 
without purchasing the subjacent soil or any easement of support, but 
subject to the obligation of making compensation. An enabling statute 
which prescribes the way something is to be done may be either an 
absolute or directory enactment. An absolute enactment must be 
obeyed or fulfilled exactly, but it is sufficient if a directory enactment 
be obeyed or fulfilled substantially (see Woodward v. Sarson^, 1875, 
L. R 10 C. P. 733, 746). A statute frequently grants a power to enable 
rules, regulations, or by-laws to be made by some authority other than 
the sovereign and Parliament in respect of some particular matter which 
is not provided for by the general law of the land. Some of these rules 
are to be regarded as legislative acts, although they are the acts of a 
subordinate but delegated authority, as, for instance, the Eules of the 
Supreme Court. Another class of rules of a subordinate character are 
the by-laws of municipal authorities, and those of companies, friendly 
societies, railway companies, and similar bodies constituted under 
legislative authority. 

[Authorities. — Hardcastle on Statutes, 4th ed. by Craies ; Stephens' 
Commentaries, 14th ed. ; Maxwell, Interpretation of Statutes, 4th ed.] 

Enclave (Fr.), from the Latin in and clavus. — Territory 
entirely surrounded by that of a single different State. Thus the 
Piepublic of San Marino is an enclave in the kingdom of Italy. 
There are many enclaves in Germany, parts of different States of the 
German Empire being situated like islands in the midst of other such 
States. 

Encroachment. — Encroachment (or incroachment, as the 
word was formerly spelt) is "an unlawful gaining upon the right or 
possession of another " (Jacob, Laiu Diet. s.v. " Incroachment "). As to 
encroachments on highways, see Highways. It is the duty of district 
councils to stop encroachments on " roadside wastes " (p. 26 (1) Local 
Government Act, 1894) ; and as to proceedings to be taken, and pro- 
visions in case of default, by district council, see sec. 26 (2) and (4). 
The council of every county borough has the additional powers conferred 
on the district council by this section (s. 26 (7)). In Curtis v. Kestcvm 
County Council (1890, 45 Ch. D. 504)— a case turning on sec. 11 (1) and 
(6) of the Local Government Act, 1888— it was held that strips of grass 
l)ordering the metalled part of a main road are " roadside wastes." See 
further, Common (Vol. III. p. 227); Inclosures; Holmes v. Upton, 1840, 
L. It. 9 Ch. 214?i. (mandatory injunction in case of encroachments on 
buttresses); LaiN d loud and Tenant ; Eisheuies; Waste. 



ENDOWED SCHOOLS 269 

Encyclical, from the Greek iyKVKkLos [kvkXos, a circle], a 
circular, confined in current application to letters issued by the pope to 
his clergy or the faithful on points of dogma, discipline, or morality. 
The expression was applied at an earlier period to similar communica- 
tions by bishops, but these are now called pastoral letters (epistolce 
pastorales). Encyclicals are issued in the form of bulls (see Papal 
Bulls). The famous encyclical of December 8, 1864 (quanta cur a) 
against modern culture, which gave rise to the Kidtitrkamiof in Germany, 
was accompanied by a syllabus {q.v.) or index stating eighty errors 
placed under the ban of the Eoman Catholic Church. The term has 
recently been applied to circular-letters by the Anglican Primates. 
Thus the reply of the Archbishops of Canterbury and York to the Papal 
Bull on Anglican Orders is styled " The Encyclical Scepius Officio" 

EncycIopaBdia. — ^AVhere the proprietor of an encyclop8edia 
employs and pays another person to compose articles for publication in 
the encyclopaedia, the question whether the copyright in the articles 
belongs to the proprietor within sec. 18 of the Copyright Act, 1842, 
c. 45, depends on an inference of fact — not law — to be drawn by a 
reasonable man from the nature of the contract and all the circum- 
stances. The contract need not be in writing ; no express words need 
be used, and the inference that the copyright was intended to belong 
to the proprietor may fairly be drawn where there are no special 
circumstances, and the only material facts are the employment and the 
payment {Laiorence & Bullen, Ltd., v. Aflalo & Cook, [1904] A. C. 17, 
reversing decision of C. A., [1903] 1 Ch. 318, and Joyce, J., [1902] 
1 Ch. 264; Sweet v. Benning, 1855, 16 C. B. 459). In Hereford v. 
Griffin, 1848, 16 Sim. 190; 60 E. R. 846, it was suggested that the 
reservation in sec. 18 of the Copyright Act, 1842, of the right of 
separate publication to the author for fourteen years after the expiration 
of the first twenty-eight years does not apply to authors contributing 
to an encyclopccdia. In Lawrence & Bidlen, Ltd., v. Aflalo & Cook (nbi 
sit}).) the House of Lords left this point open. 

End. — As to meaning of term "end" in Income Tax Act, see 
Stroud, Jud. Diet., s.v. " End." See also in same work notes to " Expira- 
tion " and " Foot ; '' and article Expiration, m/ 

EndOAVed Schools. — Endowed schools form the subject- 
matter of the Endowed Schools Act, 1869, and amending Acts. 
These resulted from the recommendations of a Koyal Commission, 
the Schools Inquiry Commission, which published its report in the 
year 1867. The scope and object of the Acts was the reorganisation 
•'f "educational endowments " (a term to which a precise and limited 
-ense is assigned by the Acts) by means of a specially constituted 
iJomniission armed with drastic powers of making schemes. These 
powers include, in particular, a general initial jurisdiction, and a 
Hberal extension of the limits of the equitable doctrine of cy-jrrds. 
The jurisdiction is, however, only temporary, and since 1882 the Acts 
have been simply renewed from year to year under the Expiring Laws 
Continuance Act. By the E. S. Act, 1874, 37 & 38 Vict. c. 87, s. 4, 
the jurisdiction was transferred to the Chakity Commissioners, pro- 
vision being at the same time made for the appointment of not more 
than two additional Charity Commissioners, with the requisite staff 



270 ENDOWED SCHOOLS 

of assistant commissioners, officers, and clerks. [As a result of the 
Board of Education Act, 1899 (see title Board of Education), and 
of Orders in Council made thereunder, dated August 7, 1900, July 
24, 1901, and August 11, 1902, the powers of the Charity Com- 
missioners with regard to endowed schools are now to be exercised 
by the Board of Education.] 

The term " educational endowments," for the purposes of the Acts, 
sitmities all endowments which or the income whereof is applicable or 
has been applied for the purposes of education at school of boys or 
girls, or either of them, or of exhibitions tenable at a school or a 
University or elsewhere (see E. S. Act, 1869, 32 & 33 Yict. c. 56, s. 5; 
cp In re Meyncke Fund, 1872, L. K. 7 Ch. 500 ; A.-G. v. Christchurch, 
Oxford, [1894] 3 Ch. 524). 

The following classes of endowments are exempted from the Acts : — 

1. Any school mentioned in sec. 3 of the Public Schools Act, 1868, 
31 & 32 Vict. c. 118, namely, Eton, Winchester, Westminster, Charter- 
house, Harrow, Rugby, and Shrewsbury (E. S. Act, 1869, s. 8, subs. 1). 

2. Any school which on the 1st January 1869 was maintained 
wholly or partly out of annual voluntary subscriptions, and had no 
endowment except school buildings or teachers' residences, or play- 
ground or gardens attached thereto {ihid. subs. 2). 

3. (a) Any school which at the commencement of the principal 
Act (August 2, 1869) was in receipt of an annual parliamentary grant 
{i.e. as an elementary school), unless such school is a grammar school 
as defined by the Act 3 & 4 Vict. c. 77 (see article Grammar School), 
or a school a department of which only was in receipt of such grant 
(E. S. Act, 1869, s. 8, subs. 3). (&) Any school which, not being a 
grammar school or a department of a grammar school, was on the 1st 
September 1873 an elementary school within the meaning of tht 
Elementary Education Act, 1870, with a gross average annual incomt 
from endowment during the three years next before that date of not 
more than £100 (E. S. Act, 1873, 36 & 37 Vict. c. 87, s. 3); an 
elementary school as defined by the Elementary Education Act ol 
1870, 33 & 34 Vict. c. 75, s. 3, being a school or department of a 
school at which elementary education is the principal part of tht 
education there given, and the ordinary fee does not exceed 9d. o 
week; [and see E. v. Cockerton, [1901] 1 K. B. 322, 726]. School- 
exempted from the E. S. Acts either under sec. 8, subs. 3, of the Act 
of 1869, or sec. 3 of the Act of 1873, may be dealt with under sec. 7." 
of the Elementary Education Act, 1870, 33 & 34 Vict. c. 75. Thi.- 
section provides that the governing body of any such schools nia} 
frame and submit a scheme to the Board of Education, who ma\ 
approve it, with or without modifications, as they think fit ; and thai 
the same powers may be exercised by means of such scheme as ma} 
be exercised by means of any scheme under the E. S. 'Act, 1869. 

4. Any school (unless it is otherwise subject to the Act) which i>^ 
maintained out of any endowment, the income of which may, in tht 
discretion of the governing body, be wholly applied to other thar 
educational purposes, or any such endowment (E. S. Act, 1869, s. t^ 
subs. 4). 

5. Any school (unless it is otherwise subject to the Act) wliicli 
receives assistance out of any endowment, the income of which may 
in the discretion of the governing body of such endowment, be appliet' 
to some other scliool {ibid. subs. 5). 



ENDOWED SCHOOLS 271 

6. Any endowment applicable and applied solely for the education 
of the ministers of any church or religious denomination, or for teaching 
any particular profession, or to any school (unless it is otherwise subject 
to the Act) which receives assistance out of such endownment {ihid. 
subs. 6). 

7. Any school which during the six months before the 1st January 
1869 was used solely for the education of choristers {ibid. subs. 7). 

The assent of the governing body of the endowment is necessary to 
the making of a scheme (E. S. Act, 1869, s. 14) — 

1. As regards any endowment founded less than fifty years before 
the commencement of the Act of 1869, i.e. later than the 2nd August 
1819 {ihid. subs. 1); 

2. As regards the constitution of the governing body of any cathedral 
school, in which case the body to assent is the dean and chapter (ibid. 
^iibs. 2); 

o. As regards the constitution of the governing body of any school 
of the Quakers or Moravians {ibid. subs. 3) ; 

4. Affecting the constitution of the governing body of any school, 
or any exhibition (other than one restricted to any schools or school 
or district) forming part of the foundation of any college in Oxford or 
Cambridge ; in which case the body to assent is the college {ibid. subs. 
4 ; see also s. 38, and In re Meyricke Fund, ubi siq^ra). 

As to the first of these cases, where an endowment founded less 

than fifty years before the commencement of the Act is so mixed with 

old buildings, etc., that in the opinion of the Commissioners, subject to 

appeal to His Majesty in Council, it cannot conveniently be separated, 

the whole endowment is to be deemed to have been given to charitable 

uses more than fifty years before the commencement of the Act, and no 

assent is therefore required (s. 25. But see also E. S. Act, 1873, s. 8, 

[and the Welsh Intermediate Education Act, 1889, s. 13]; and cp. 

In re The Free Grammar School in Swansea, etc., [1894] App. Cas., at p. 

259). Where the two endowments have not become so mixed and the 

jjverning body do not assent under sec. 14 (1), the scheme may provide 

•r apportionment (see s. 26). [See also on a similar point the opinion 

f the law officers, quoted in 47th Eeport of Charity Commission, p. 67.] 

The case of mixed endowments generally, that is to say, endowments 

] tartly educational and partly applicable to other charitable uses, is 

iealt with by sec. 24. Under the provisions of that section, except in 

• ) far as the governing body assented to the scheme departing there- 

rom, the part applicable to other charitable uses was not to be diverted 

1 om those uses, and was to be ascertained by the Commissioners, subject 

'» appeal to His Majesty in Council, upon the basis of the average pro- 

ortion which was or ought to have been so applied during the three 

•'ars prior to the passing of the Act (subs. 2), and if the proportion 

Pplicable to other charitable uses exceeded one-half, no alteration of 

I le governing body might be made (subs. 3). [These powers of the 

onuuissioners are now to be exercised by the Board of Education. 

^ee Board of Education (Powers) Order in Council, 1902, s. 2 (2).] 

For the purposes of the Act, endowments attached to any school 
lor apprenticeship or advancement, or maintenance or clothing, or 
otherwise for the benefit of children educated at the school, are to be 
<leemed educational endowments (s. 29). Further, under the provisions 
of sec. 30, dole charities and certain other non-educational charities 
therein specified may be applied for education with the consent of 



272 ENDOWED SCHOOLS 

the governing body; but the tendency is for this section to be less 
resorted to as time goes on, owing to the altered attitude of public 
opinion in regard to eleemosynary charities. 

The general nature of the jurisdiction under the Endowed Schools 
Acts is indicated in sec. 9 of the Act of 1869, which confers upon the 
Commissioners, [and now upon the Board of Education], power in such 
manner as may render any educational endowment most conducive to 
the advancement of the education of boys and girls, or either of them, 
to alter and add to any existing trusts, to make new trusts, and to con- 
solidate or divide endowments. It has been held that the powers 
conferred by this section include the removal of a site {In re The Free 
Grammar School, etc., at Hemsworth, 1886, 12 App. Cas. 444 ; also enlarge- 
ment of area, In re St. Leonard, Shoreclitch, Parochial Schools, 1884, 10 
App. Cas. 304). Such general powers are, however, subject to certain 
limitations and qualifications. 

In the first place, it is the duty of the Commissioners in every scheme 
which abolishes or modifies any privileges or educational advantages to 
which a particular class of persons are entitled, whether as inhabitants 
of a particular area or otherwise, to have due regard to the educational 
interests of such class of persons (E. S. Act, 1869, s. 11). And the 
Hke regard is to be had to the interests of persons in a particular class 
of life (E. S. Act, 1873, s. 5). As to "due regard," see In re Free 
Grammar School, etc., at Hemsworth, uhi supra ; In re Sutton Coklfield 
Grammar School, 1881, 7 App. Cas. 91 ; In re Hodgson's School, 1878, 
3 App. Cas. 857 ; Boss v. Charity Commissioners, 1882, 7 App. Cas. 463. 

One of the chief difficulties in dealing with endowed schools under 
the old law had been the frequency of vested interests possessed by 
teachers and office-holders in connection with the endowments. To 
clear the way for the present legislation a preliminary Endowed Schools 
Act, 31 & 32 Vict. c. 32, had been passed in the year 1868, whereby the 
creation of fresh vested interests was prevented. Sec. 13 of the E. S. Act, 
1869, makes provision for the saving of vested interests which had been 
in existence prior to the Act of 1868. Owing to the lapse of time this 
saving has, of course, almost ceased to have practical importance. 

In regard to religion, the following provisions must in general be 
inserted in every scheme: — (1) A strict conscience clause for day 
scholars (vide E. S. Act, 1869, s. 15), [and see Welsh Intermediate Act, 
1889, s. 4, and Education Act, 1902, s. 4 (2)]; (2) a modified form of 
conscience clause for boarders (ibid. s. 16); (3) a provision that religious 
opinions are not to disqualify for memJaership of the governing body 
(ibid. 8. 17); (4) a provision that masters are not to be required to be in 
holy orders (ibid. s. 18). Under sec. 17 it has been held that the holder 
of an ecclesiastical office in the Church of England cannot lawfully 
be made an ex officio member of the governing body (see In re Hodgson'^ 
School, 2ibi siqird). This provision is, however, modified by sec. 6 of the 
E. S. Act, 1873, which authorises the retention of the holder of a particular 
office who is a member of the governing body under the express terms of 
the original instrument of foundation. 

Where a scheme gives the governing body power to make regulations 
for religious instruction it must provide for a year's notice of any altera- 
tion of such regulations (E. S. Act, 1873, s. 11). It is the practice in 
schemes for endowments not falling under sec. 19 of the principal Act 
(see po8t) to provide for religious instruction according to the principles 
of the Christian faith. 



ENDOWED SCHOOLS 273 

Certain classes of schools are exempted from the provisions of the 
principal Act as to religion, other than the day scholars' conscience clause, 
except in so far as the governing body, constituted as if no scheme had 
been made, assent to such scheme ; and in these cases no provision (save 
as aforesaid) affecting religion or religious instruction may be inserted in 
the scheme without the consent of the governing body (E. S. Act, 1869, 
s. 19). The exemptions are — 

1. Cathedral schools {ibid. subs. 1). 

2. Any educational endowment, if by the express terms of the original 
instrument of foundation or of the statutes or regulations made by the 
founder or under his authority in his lifetime, or within fifty years after 
his death (which terms have been observed down to the commencement 
of the Act), it is required («) that the scholars should be instructed 
according to the doctrines or formularies of any particular church, sect, 
or denomination {ibid. subs. 2) ; or (h) in the case of any educational 
endowment originally given to charitable uses since the date of the 
Toleration Act, 1688 (1 Will. & Mary, c. 18), i.e. February 13, 1688, 
that (i.) the majority of the members of the governing body or persons 
electing the governing body, or (ii.) the principal teacher, or (iii.) the 
scholars shall be members of a particular church, sect, or denomination 
(E. S. Act, 1873, s. 7). The expression "express terms" is construed 
strictly (see In re St. Leonard, Shoreditch, Parochial School, ubi supra ; 
see also Boss v. Charity Commissioners, and In re Free Gi^ammar School, 
etc., at Hemsworth, ubi supra ; [and Re Swansea Grammar School, [1894] 
App. Cas. 252]). 

The Commissioners [and now the Board] under the E. S. Acts are 
empowered to provide in every scheme, except in the case of cathedral 
schools, for the transfer of the jurisdiction of the Visitor to His Majesty, 
to be exercised only through the [Board] (E. S. Act, 1869, s. 20); and 
they must in every scheme provide for the abolition of the jurisdiction 
of the ordinary as to licensing masters {ibid. s. 21). As to visitatorial 
powers, see Tudor on Charities and Mortmain, 4th ed., p. 83, and article 
Visitation of Charities. 

For purposes of inquiry, the Commissioners and Assistant Commis- 
sioners under the E. S. Acts, and now the Board of Education, have the 
same powers as to production of documents and attendance and examina- 
tion of witnesses as are conferred on Commissioners and inspectors under 
the Charitable Trusts Acts (E. S. Act, 1869, s. 49). The statutory pro- 
cedure for making schemes is as follows : — 

1. The draft scheme is first printed and published for a period of two 
months, during which objections and suggestions are received by the 
Board (E. S. Act, 1869, ss. 33, 34; E. S. Act, 1873, s. 12). At the con- 
clusion of this period an inquiry concerning the draft scheme may be held 
if the Board thhik fit (E. S. Act, 1869, s. 35). 

2. The scheme is then finally framed by the Board, and was originally 
to be submitted for approval to the Committee of Council on Education 
(s. 36). [By the Board of Education (Powers) Order in Council, 1901 
(Schedule), final settlement by the Board takes the place of approval by 
the Committee of the Council (and see E. S. Act, 1873, s. 13)]. 

3. The scheme, as finally settled, is published and circulated (E. S. 
Act, 1873, s. 13). Within two months of such publication one or other 
of the following measures may be adopted against it : — {a) A petition of 
appeal may be presented to the Privy Council (E. S. Act, 1869, s. 39 ; 
1873, s. 14) ; (b) a petition may be presented to the Committee of Council 

VOL. V. 18 



274 ENDOWMENT 

on Education praying that the scheme may be laid before Parliament 
(E. S. Act, 1873, s. 13). 

An appeal to the Privy Council against a scheme may be made 
(E. S. Act, 1869) (a) by the governing body of any endowment to which 
the scheme relates, or any person or body corporate directly affected by 
such scheme on the ground — 

(1) Of any decision of the Board in a matter in which an appeal to 
His Majesty in Council is given by the Act (cp. ss. 19, 24, 25, 26 ; E. S. 
Act, 1873, s. 8); or 

(2) Of the scheme not saving or making due compensation for his or 
their vested interests as required by the Act (cp. s. 13) ; or 

(3) Of the scheme being not within the scope of, or made in con- 
formity with the Act (cp. In re Free Grammar School, etc., at Hemsworthy 
uhi mpra) ; or (h) by the governing body only, on the ground — 

(4) Of a scheme not having due regard to any educational interests, 
to which regard is required by this Act to be had, on the abolition 
or modification of any privileges or educational advantages to which a 
particular class of persons are entitled (cp. s. 11). 

As to " directly affected," see In re Shaftoes Charity, 1878, 3 App. Cas. 
872, [approved, 7 App. Cas. 91] ; In re Sutton Coldfield Grammar School ; 
In re Free Grammar School, etc., at Hemsworth, nhi supra). Appeals to the 
Privy Council are not allowed in the case of endowments where, during 
the three years preceding the commencement of the principal Act, the 
average annual income was not more than £100 (s. 42). Appeals are 
referred to the Judicial Committee of the Privy Council (E. S. Act, 1873, 
s. 14). 

When a petition has been presented to the Committee of Council on 
Education, the scheme must be laid before both Houses of Parliament 
for two months, after which, unless an address has been presented 
during that period by either House praying His Majesty to withhold 
his consent, His Majesty may approve the scheme (E. S. Act, 1873, 
s. 15). 

4. Approval by the King in Council is the final stage of the pro- 
cedure. If this is withheld, the Board may prepare a new scheme (E. S. 
Act, 1869, s. 43). No scheme takes effect until approved by the King, 
and when so approved it has the force of an Act of Parliament (s. 45). 

It remains to add that during the continuance of the Acts the juris- 
diction of the Court (except with the consent of the Committee of Council 
on Education) is ousted as to any endowed school or educational endow- 
ment which can be dealt with by a scheme under the Acts (E. S. Act, 
1874, s. 6 ; cp. E. S. Act, 1869, s. 52). This provision, of course, does not 
apply in the case of a mixed endowment, as to which, by reason of the 
dissent of the governing body, a scheme cannot be made under the Acts 
(cp. A.-G. V. Moises, stated in Tudor on Charities and Mortmain, App., 4th 
ed., p. 1036). 

[Authorities. — Tudor on Charities and Mortmain, 4th ed. ; Bourchier- 
Chilcott's Administration of Charities, 2nd ed. See also School.] 

Endowment. — See Charities; Church of England; 
Endowed Schools; Friendly Societies. 

Enemy. — The treatment of the person of belligerents varies 
according as they are combatants or non-combatants. Combatants may 
be attacked so long as they resist, and may be destroyed by any legiti- 



ENGINEEE AND ENGINEEEING CONTRACTS 275 

mate means ; if, however, they surrender, they are entitled to be treated 
as prisoners of war. With regard to non-combatants, the rules of war 
prescribe that they are not to be attacked unless they in some way show 
active hostility. See Enemy's Goods ; and for a full treatment of the 
subject. Belligerent ; Neutrality ; War. 

Enemy's Goods. — On the outbreak of hostilities between 
two States, international law sanctions the appropriation by each 
belligerent of certain kinds of property belonging to the other. Public 
property, such as ships and munitions of war, may be seized, but private 
property within a State is now usually regarded as exempt from con- 
fiscation, subject, however, to the right of the army in occupation to 
levy contributions and make requisitions. Private property of the 
enemy at sea has usually been considered legitimate prize, although 
some States have contended against the principle, and entered into 
treaties excluding it. By the Declaration of Paris in 1856, to which 
most civilised States, with the exception of the United States of 
America, were parties, enemy's goods, with the exception of contra- 
band of war, are declared protected by a neutral flag, and neutral 
goods, with the like exception, in enemy's ships are similarly protected. 
By the law of England, enemy's goods seized in English ports and 
creeks go to the Crown as droits of Admiralty. See Contraband; 
Neutrality; War. 

Enfranchisement- — See Copyhold; Slave Trade; etc. 

Eng'ag'e ; Engagement. — ^Words synonymous with to 
'' contract " and a " contract." In a deed the word " engage " is sufficient 
to constitute a covenant, since it shows that the parties bind themselves 
to do a certain act {Bighy v. Great Western My. Co., 1845, 15 L. J. Ex. 62 ; 
14 Mee. & W. 816 ; 69 E. B. 839). 

Engine. — A snare is an "engine or instrument" within the 
meaning of sec. 3 of the Game Act, 1831 {Allen v. Thompson, 1870, 
L. R. 5 Q. B. 336). 

Engineer and Engineering Contracts.— Engineers 

in this country are divided between two principal branches, the civil 
and mechanical engineers. The distinction between the two branches 
is, speaking generally, that civil engineers plan and carry out works of 
construction, such as roads, bridges, docks, and railways, and mechanical 
engineers design and construct machinery. Numerous subordinate 
divisions of the profession are recognised, some of which are indicated 
by the terms, "consulting," "railway," "sanitary," "drainage," "elec- 
trical" engineer. 

1. There are no rules of law or statutes applying to engineers as 
such. 

2. There is no public examination for engineers, and no English 
diploma. Anyone is at liberty to undertake engineering work, and 
should he be negligent or incompetent in performing it, is liable to his 
employer for any damage the latter may incur by reason of his not 
possessing and using ordinary skill and care (see LanjMcr v. Phipos, 
1838, 8 Car. & P. 475, and the article on Principal and Agent). 

3. No customary or recognised scale of charges payable to the 



276 ENGINEER AND ENGINEERING CONTRACTS 

engineer employed to design or conduct such works exists which corre- 
sponds to the scale of the Royal Institute of British Architects. 

4. The nature of their professional avocations, and the forms of the 
contracts to which civil engineers, in particular, frequently become 
parties, or by virtue of which they undertake special duties, bring them 
chiefly in contact with those branches of the general law which deal 
with principal and agent, and with arbitration. In general, the position 
of an engineer in its legal relations is much the same as that of an 
architect (see Vol. I. p. 501). It is proposed in this article to refer 
only to a few points which frequently arise out of contracts for the 
construction of engineering works. 

5. Certificate. — If payment to the contractor is made to be dependent 
upon a certificate for the amount being given by the engineer employed, 
the contractor cannot sue for payment, or on a quantum meruit, at law 
or in equity (M'lntosh v. Great Western Ely. Co., 1850, 2 Mac. & G. 74; 
19 L. J. Ch. 374; 42 E. R. 29; Be Worms v. Ifellier, 1873, L. R. 16 Eq. 
554; see also Sumpter v. Hedges, [1898] 1 Q. B. 673; Hart v. Portligain 
Harhour Company, [1903] 1 Ch. 690), before the certificate is given,. 
even though it be not given by the fault of the engineer {Clarke v. 
Watson, 1865, 18 C. B. N. S. 278 ; 11 L. T. 679), or sue the engineer for 
damages {Stevenson v. Watson, 1879, 4 C. P. D. 148), unless the certifi- 
cate is withheld by fraud {l.cc., M'lntosh v. Great Western Ely. Co., 
supra; SJiarpe v. JSan Paulo Ely. Co., 1873, L. R. 8 Ch. 597), or by 
collusion {Batterhury v. Vyse, 1863, 2 H. & C. 42 ; see cases cited below, 
9), or arrangement {Kimherley v. Dick, 1871, L. R. 13 Eq. 1) between 
the employer and the engineer. See also, as to the position of the 
employers where their engineer refuses to give a certificate for certain 
work on the ground that the contract did not provide for this to be done, 
Pearson v. Dublin Corporation, [1907] 2 Ir. R. 27. The certificate need 
not be in writing unless the contract so requires (Eoberts v. Watkins, 
1863, 14 C. B. N. S. 592; 8 L. T. 460; see Tharsis Sulphur Co. v. 
M'Elroy, 1878, 3 App. Cas. 1040, and below, 7). See Leake on Con- 
tracts, 5th ed., 1906, p. 451. 

6. If the contract contains an arbitration clause, a claim to payment, 
notwithstanding that the certificate is withheld, may be within the 
clause (Hohenzollern & Gesellschaft v. Contract Corporation, 1886, 54 
L. T. 596), but where there is such a clause the contract may, and often 
does, make the engineer's certificate conclusive and indispensable 
(Sharpe v. San Paulo Ely. Co., stcpra). But where the employer contracts 
with the contractor that the certificate of the engineer, showing the final 
balance due and payable to him, shall be conclusive evidence of the 
due completion of the works, and that this entitles the builder to receive 
the balance, the architect is an arbitrator, and therefore not liable to 
an action for negligence in exercising the functions relating to the 
certificate (Chambers v. Goldthorpe, [1901] 1 K.. B. 624). ' 

If the engineer's certificate is to be regarded as final, care must be 
taken to draft the arbitration clauses in such a shape that there is no- 
loophole for opening up a discussion on any point connected with the 
certificate {Eobi7is v. Goddard, [1905] 1 K. B. 294); and as to finality, 
see also Foster & Dicksee v. Mayor, etc., of Hastings, 1905, 87 L. T. 736. 

7. As to the authority of an engineer in charge of works on behalf 
of the employer, see Hudson on Building Contracts, ch. ii. ; Lawson v. 
Wallasey L. B., 1882-83, 11 Q. B. D. 229; Tharsis Sulphur Co. v. 
M'Elroy, mijira ; and Eoberts v. Bury Commissioners, 1869-70, L. R. 4 



ENGINEER AND ENGINEERING CONTRACTS 277 

C. P. 755; 5 C. P. 310. Where a written certificate is required, he has 
no authority to bind the employer by a verbal promise to pay {Shavpe 
V. San Paulo Ely. Co., supra ; Lawson v. Wallasey L. B., supra), and he 
cannot as an arbitrator determine the question whether he has such 
authority {I.e.). 

8. Arbitration. — The contract very frequently provides that all 
questions in dispute shall be referred to the engineer as arbitrator (see 
AiiBiTRATiON, Vol. I. p. 453). The submission in such a case will be 
enforced by the Court, notwithstanding that the engineer may have 
formed an opinion on the matter in dispute before hearing the parties, 
at anyrate if he has not made up his mind so as not to be open to change 
it upon argument {Jackson v. Barry Ely. Co., [1893] 1 Ch. 238), and 
notwithstanding that he may probably be biassed in favour of the 
employer's contention, unless there is sufficient reason to expect that 
he will not act fairly {Eckersley v. Mersey Docks Board, [1894] 2 Q. B. 
667; Ives & Barker v. Willans, [1894] 2 Ch. 478). 

The reason of this exception to the usual course pursued by the 
Court in respect to arbitrations is that the parties know that the 
engineer cannot be expected to come to the question " with a mind free 
from the human weakness of a preconceived opinion." " The perfectly 
open judgment, the absence of all previously formed or pronounced 
views, which in an ordinary arbitrator are natural and to be looked for, 
neither party proposed to exact." " The parties relied on the engineer's 
professional honour, his position, and his intelligence." The contractor 
has a right to expect that he will be ready to listen to argument, and 
at the last moment, to determine as fairly as he could, after all had 
been said and heard. The question is, has he done anything to unfit 
himself to act, or render himself incapable of acting, not as an arbitrator 
without previously formed, or even strong, views, but as an honest judge 
of this very special and exceptional kind ? {per Bowen, L.J., in Jackson 
V. Barry Ely. Co., sup>ra). 

9. Where a contract with a railway company provided for the 
reference of disputes to A. B., if he should continue to be the principal 
engineer of the company, and the company amalgamated with another, 
it was held that the submission was binding so long as A. B. had control 
of the line of the first-named company {In re Wansbeck Ely. Co., 1866, 
L. R. 1 C. P. 269). So where it was provided that a certificate signed 
by " J. M. of the firm of J. M. & Son, or other the engineer of the 
Corporation," should be sufficient for extra work, and before the extra 
work done had been paid for J. M. died, E. M. (a member of J. M.'s 
firm who was appointed to carry out his duties) was held competent 
to give a certificate for the extra work done before his appointment 
{Kellett V. Mayor, etc., of Stockport, 1906, 70 J. P. 154). 

10. A contractor was required to purchase machinery from certain 
named firms, and it was provided that if the engineer should have 
"reasonable cause to believe that the contractor is unduly delaying 
proper payment," he should have power to pay such firms direct, and 
deduct the amount from the next certificate. The contractor became 
bankrupt on his own petition, owing money to the named firms. The 
engineer was held able to deduct the sum due from the next certificate 
on the ground that the contractor, by presenting his own petition, was 
" unduly delaying proper payment " {In re Wilkinson ; Ex parte Fowler, 
[1905] 2 K. B. 713). 

11. The duties of an engineer with respect to engineering contracts 



278 ENGINEER & ENGINEERING CONTRACTS— PRECEDENTS 

are very similar to those of an architect in relation to building contracts. 
The details of contracts have been fully gone into under Builder and 
Building Contracts, Vol. II. p. 439, and should be examined in all 
engineering contract cases. Any further details of interest in engineer- 
ing contract cases have been illustrated by way of notes in the forms 
given below. 

Authorities. — See generally Emden's Building Contracts, 1907 ed., 
(Matthews & Ball), Hudson's Building Contracts, 1895 ed., both of which 
give forms, and an essay by Mr. W. C. Glen in Donaldson's Handbook of 
/Specifications, 1860 ed. 



PRECEDENTS. 



I. — AGREEMENT f<yr the Construction of a Railway Station 

and Line. 

rarties. THIS INDENTURE of Contract made the day of 

19 , Between A. B. and C. D., carrying on business 
as builders and contractors, under the name or firm of 
and Company, at , in the county of (who are 

hereinafter referred to as the contractors), of the one part, and the 
Railway Company, incorporated by an Act of Parliament 
passed in the and years of the reign of His Majesty 

King Edward VII., intituled "The Railway Act, 19 " (and 

who are hereinafter referred to as the company), of the other part. 
Recitals: Whereas the company, acting under the authorities vested in 
ofiSmpaSy them by "The Railway Act, 19 ," and by certain public 

stetionr ^^^^ incorporated therewith, are authorised to make and maintain, 
lines, Ac. ^nd contemplate making and maintaining the following railways, 
with all proper stations, approaches, works, and conveniences con- 
nected therewith, respectively, that is to say : — 

1. A railway (hereinafter called railway No. 1) commencing at 
or near X., and terminating at or near Y. 

2. A railway (hereinafter called railway No. 2), &c. 
^pTJffhis -^"^ particularly a new terminal station; And whereas 
agreement; the contract intended to be effected by these presents comprises 

the construction and maintenance for a period of one year after 
completion of the railways and works authorised by the 
Railway Act, 19 , and hereinbefore mentioned, or such number 
or parts of the said railways and works as the engineer of the 
company may from time to time determine to have executed under 
this contract, and under the powers of the said Act, and the same 
contract also comprises such other or additional works as may be 
required by the said engineer, to complete for public use the rail- 
ways and works hereinbefore mentioned, or such number or parts 
thereof as the said engineer may determine to have executed 
under this contract, and to carry into effect any agreements with 
landowners and others, which the company has entered into, or 
may hereafter enter into, as well as the various clauses and pro- 



ENGINEER & ENGINEERING CONTRACTS— PRECEDENTS 279 

that in- visions of the said Act ; And whereas the principal general 
works are features of the works are, or will be, stated in the specifications 
specifica- hereunder written and in subsequent specifications, and also in the 

drawings and instructions to be issued by the engineer from time 
ga* jo^jtrac- to time; And whereas the contractors have proposed to the 
proposed to company to execute the aforesaid works, matters, and things upon 
works. the terms and conditions hereinafter mentioned, and the company 

having accepted such proposal, the parties hereto have agreed to 
Agreement, enter into these presents for that purpose accordingly ; NOW 

THIS INDENTURE WITNESSETH that in consideration of 

tthe payments to be made in cash or otherwise as hereinafter 
provided for, and of the covenants hereinafter contained on the 
part of the company, the contractors hereby do jointly and as 
separate covenants each of them doth covenant and agree with 
the said company in manner following, viz. : That they, the con- 
tractors, shall and will in a good and workmanlike manner, to the 
entire satisfaction of the company's engineer,^ construct, execute, 
complete, and maintain the railways, works, matters, and things 
hereinbefore mentioned, and also described or mentioned or to be 
described or mentioned in the said specifications and plans herein- 
before referred to, and shall and will duly execute and construct, 
complete, and maintain all the works, and find and provide all the 
plant, materials, labour, matter, and things of and relating to the 
said intended railways and works, in the manner, within the time, 
and subject to the terms and conditions, and for the considerations 
hereafter expressed, that is to say : — 
Contractors J, The Contractors shall execute, construct, complete, and main- 

, to execute ' » r » 

works and tain all the works, and find and provide all the plant, materials, 

provide i i • . , . , , , . 

plant, &c. labour, matters, and thmgs comprised in this contract, and m 
accordance with the terms, conditions, stipulations, and provisions 
of these presents, and of the specifications hereunder written, or of 
any drawings, instructions, or subsequent specifications to be issued 
by the engineer from time to time, and for the considerations ex- 
pressed and set forth in these presents and in the schedule of prices 
hereunder written ; And all plant, materials, matters, and things 
used or procured by the contractors for the purpose of this contract, 
and brought or left upon or near to the site of the said works, 
shall become and be considered as the property of the company 
for the purposes of the said works and undertaking,^ and shall not 
be removed, taken away, disposed of, or returned, to the con- 
tractors, unless with the consent in writing of the engineer ; but 
the company shall not be answerable for any loss or damage thereto. 

1 This makes the engineer the final arbiter as to the general interpretation 
of methods of construction, &c. As clause 38 (q.v.) the arbitration clause does not 
apply here. 

2 This may be regarded as vesting the materials in the railway comimnjr, 
subject to a condition of defeasance if completed by the contractor. It is m 
the nature of a collateral security for proper completion of the contract. See 
Hart v. PortJujain Harbour Company, Ltd., [1903] 1 Ch. 690, distinguishing A'x 
parte Collins, [1902] 1 K. B. 555, which latter case also explains tlie position 
of the parties in relation to the clause noted, where the contractor becomes bank- 
rupt. 



I 



280 ENGINEER & ENGINEERING CONTRACTS— PRECEDENTS 

Contractors, 2. The contractors shall, in the execution of the works, be 
of engineer, allowed to avail themselves of the company's Acts of Parliament, 
SSweJves as far as they are applicable to the due and proper execution of 
^wereS'^ the works : But, in all cases, the contractors shall previously apply 
company. ^^^ ^^^^ receive the sanction in writing of the engineer, and shall 

obtain from the company all necessary and proper notices for the 

execution of any such powers. 
As to lands 3, The land required for the site of the works shall be provided 

required for ^ 1 n 1 • 

execution of by the company, but the contractors shall, at their own cost, pro- 
vide all the land required for temporary purposes, or for depositing 
the materials excavated from the foundations and site of the works; 
and, in order to obtain this, they may, at their own cost, use the 
powers of the company's Acts of Parliament ; but the situation of 
the land required for such purposes must be to the entire satisfaction 
of the engineer. 

Contractors 4, The Contractor shall also make definite arrangements with 

to arrange o 

with owners the owncrs of property in respect of all land or property taken, 
Ac, and ' used, or entered upon, for any temporary purposes, and shall pay 
company all damages, compensation, and purchase or other money that may 
°™ ^ ^'°^^* become payable in respect thereof, or in respect of trespass; and 
subject, as hereinafter is mentioned, in respect of injury to adjoin- 
ing or contiguous properties, or in respect of the use for such 
temporary purposes as aforesaid of the company's Acts of Parlia- 
ment; and shall indemnify the company therefrom, and from all 
claims and demands on account thereof; and if the company shall 
be called upon to pay any such moneys, the sums so paid, or which 
the company shall be liable to pay, shall be charged to the contractors, 
as so much money paid to or on account of the contractors. 
not°to¥&°^ 5. The contractors shall not sell, or otherwise dispose of, or 
m^veisand, remove, except for the purposes of this contract, or in the manner 
hereafter provided for, any sand, clay, soil, or other materials of 
any kind or description whatsoever, which may be obtained from 
the excavations or embankments, or from any lands in the possession 
of the company. 
to'narforaJi ^' -^^^ buildiugs, erections, works, materials, trees, timber, and 
Ac^ removed °^^®^ producc now upon the site of the works shall be the property 
^r'^Mrposesoi the Company ; and as many of them as it may be necessary to 
works; take down and remove for the execution of the works, shall be 
taken down and removed from the works and property of the 
company by the contractors, and they shall take the same as their 
property, and shall pay or allow to the company for the same such 
sum of money as shall be decided by valuation td be the value 
thereof, after taking into account the costs and expenses to the 
contractors of pulling down and removing the same ; or, in case 
of difference, as shall be determined by arbitration in manner 
hereinafter provided. ^ 
puUge^^ 7. The contractors shall at all times during the term of this 
road«,4c. contract keep free from obstruction the passage of streets, roads, 
public footpaths, canals, rivers, and other communications. 
^ Under the general arbitration clause, viz., No. 38. 



ENGINEEE & ENGINEERING CONTRACTS— PRECEDENTS 281 

^^bilfofau"' ^' '^^® contractors shall guarantee the stability of every part 
damage, &c., of the works they execute, and shall be responsible for any 

caused by . -^ . ' . , , ,. , . . 

works; damage or inconvenience that may arise to the public authorities, 
or to the owners or occupiers of land, or any other parties whose 
interests may be affected by reason of any of the works herein 
contracted for,i while in progress, and for twelve months after their 
satisfactory completion, or by reason of delays in the commencement 
of or completion of such works. 

toobsene 9 The contractors shall in all cases strictly adhere to and 

f5tatUtOr>' 1 r n 

provisions observe and perform all and singular the clauses, stipulations, and 

in construe- , . ^ ' r » 

lion of the provisions in any present or future Act of Parliament relating to 
the railways or affecting the execution of the works hereby con- 
tracted for, or to any agreement that the company has entered or 
may hereafter enter into with landowners or others, whose interests 
may be affected by the works, so far as relates to such execution ; 
and the contractors shall be responsible for all claims to be made 
upon or against the company, arising out of or owing to any 
infringement or neglect of or non-compliance with such conditions, 
clauses, stipulations, provisions, or agreements, and in case of the 
contractors refusing or neglecting to pay or to satisfy such claims, 
the engineer shall have full power to direct the company to pay 
or satisfy such claims, and to charge the amount thereof and all 
costs, charges, and expenses attending the same to the contractors, 
as so much money paid to them on account of their contract. 
iumake 10. The contractors shall also be liable for, and shall make 

damage to good any damage or injury to streets and roads, whether public 
''jo^ng or private, and to contiguous or adjoining lands, buildings, or 
arties. property, and to sewers, drains, culverts, water and gas mains, 
pipes, telegraphs, &c., occasioned by the acts or defaults of them- 
selves, their agents, servants, or workmen, or from any cause 
whatever contingent upon the execution of their works done or 
omitted by themselves for their own purposes as contractors, and 
shall take upon themselves any liability of the company to com- 
pensate owners and occupiers of buildings and land for temporary 
damage, and shall pay the costs of all suits and trials which may 
arise from these causes ; but this shall not include any compensa- 
tion which in the ordinary course will be payable by the company 
for the injuries affecting lands, buildings, or other property, such 
as the interference with light, water, &c., not occasioned by the 
acts or defaults of the contractors, or their agents or servants as 
such contractors. 
heduieof 11. And it is expressly declared that no addition to the prices 
set forth in the schedule of prices shall be made in consequence of 
any increase that may be made in the temporary works which may 
be considered requisite during the progress of the works, whether 
for the better or more convenient execution thereof, or for pre- 
venting damage or accidents ; that if in the execution of the 
permanent works it shall appear expedient to the engineer to 
omit any of them or to add any others to them, or to make 
1 This includes consequential damage. 



noes, 



282 ENGINEER & ENGINEERING CONTRACTS— PRECEDENTS 

any additions to or deductions from, or alteration in them, or the 

depths, dimensions, or sizes specified, or any alteration in the 

materials specified, such alteration and changes, if authorised in 

writing by the engineer, but not otherwise, shall be made by the 

contractors, subject as herein mentioned ; but such additions, 

deductions, or alteration shall not render void or in any respect 

vitiate this contract. 

Mainten- 12. All boarding, temporary fences, boards, gates, and other 

temporary provisions for the prevention of trespass and injury while the 

during pnv works are in progress shall be made to the satisfaction of the 

SSs?' engineer by the contractors, who shall likewise be responsible 

for all damage caused by the want of such precautions ; the 

contractors shall also maintain all such watchmen, lights, and 

other precautions as may be deemed necessary and expedient 

by the engineer or the local authorities, for the security of life 

and property, and for the convenience and safety of the works; 

and it is hereby expressly agreed that in all cases where claims 

are made for damages done by the contractors, or their servants or 

workmen in carrying this contract into execution, and for which 

claims the contractors will be liable as between themselves and the 

company under the provisions hereinbefore contained, and the 

contractors do not forthwith discharge the same, the engineer 

may, when such claims appear to him to be reasonable, direct 

the company to pay the same on account of the contractors. 

Mainten- 13. The contractors shall also maintain the permanent fenciniz 

permanent of every kind in good order, and shall prevent trespass on, to, or 

°^*°^' between lands adjacent to the works during the progress of the 

works, and for one year after the same are completed, and shall 

make good any loss or damage that may arise in consequence of 

their not so doing. 

Statement 14. The Contractors shall, if required, furnish the engineer with 

of proposed i i 

arrange- a Statement of the arrangement they propose to adopt for the 
be sub- execution of this contract, and if the engineer shall consider any 
engineer, alteration in the same desirable, the contractors shall be bound to 

conform thereto. 
Police. 15. The contractors shall, at the cost of the company, provide 

suitable policemen when it may be so ordered by the publio_ 
authorities, or if and whenever directed by the engineer so 
do, for the protection of their own property, or that of the adjaceni 
inhabitants, or the public interest. 
Wwtaaen's 16. The contractors shall, at their own expense, erect sucl 
temporary cottages and conveniences,^ to be approved by thf 
engineer, as may be necessary for the accommodation of th< 
workmen and their families during the execution of the worka 
and shall also provide such offices as may be directed by thi 
engineer for the use of the engineers or inspectors of the lines j 
and at the termination of their contract, or at such times as the! 



* These buildings and conveniences will, of course, be subject to the build 
and other by-laws of the particular district in which they are erected, as well 
to the approval of the engmeer. 



i 



i 



ENGINEER & ENGINEERING CONTRACTS— PRECEDENTS 283 

engineer may think fit, they shall take down and remove from the 
works or the adjacent property such cottages or offices, the 
materials to be the property of the contractors. 
Drawings to 17. The dimensions of the brickwork, masonry, wrought and 
dimensions cast-iron work, wood-work, and other works of every description, 
shall be marked upon the drawings; the lengths and levels of the 
ground, depths of foundation, thickness, size and dimensions of the 
works shall be also shown upon the drawings, and the contractors 
in the execution of the works, unless they have written instruc- 
tions from the engineer to do so, shall not exceed the depths and 
dimensions shown therein, and should they do so, they shall not 
be paid for any increased quantity of work that may be caused 
thereby.! 
Astodis- 18. In case of any discrepancy in the drawings between the 

crepancies ^ j !• • i i 

in drawings, ngured dimensions and the measurement taken from the respective 

scales, the former shall, unless in obvious cases of clerical error, in 

all cases be considered as correct and binding upon the contractors ; 

also the drawings to larger scales shall be taken as more correct 

than those to smaller scales, and the contractors shall work to such 

detailed drawings or instructions as may from time to time be 

given them by the engineer. 

Company 19. The centre lines of the railways, and the extent of land 

responsible bought or to be bought by the company, has been or will be stated 

«l state- where possible ; but the company shall not be responsible for the 

plans. accuracy thereof, nor shall they be responsible for the plans 

showing the surface of the ground. The contractors shall set out 

the works in conformity with the provisions of this contract and 

the Act of Parliament authorising their formation. 

Deviations 20. The whole of the works herein contracted for shall be 

•ndspecifi- executed precisely as shall be shown upon the drawings, and 

to be" described in the specifications hereafter mentioned, and in any 

without subsequent specifications or instructions which may be given from 

JJSent^^ time to time to the contractors, and shall not in any case be 

altered or deviated from without the authority in writing from the 

engineer. 

Ck)n tractors 21. The Contractors shall not absent themselves from the works 

to provide • i i . ^ i, , . , ■• 

agent and Without having a fully authenticated and competent agent to act in 
assign, &c., their stead, nor assign or sublet the whole or any part of the works 
Sola herein contracted for without the previous sanction in writing of 
consent ^j^g engineer, and no sub-contract or assignment of the said con- 
tractors shall exonerate the contractors from their liability for the 
due performance of the contract.^ 

^ The work to be done is that ordered. It is not sufficient to do something 
"as good or even better." Hence, also, if better work is put in than ordered extra 
money cannot be claimed, nor can the better material be reclaimed. See Wiltnot v. 
Smith, 1828, 3 Car. & P. 453. 

^ This provision prevents the contractors setting up the default of their sub- 
contractors as a reasonable excuse for delay or default on their nart. As to delay 
in relation to contractor and sub-contractor, see Mitchell v. Guildford Union, 1903, 
1 L. G. R. 857, following Leslie d- Co. v. Metropolitan Asyhims District^ 1901, 
1 L. G. R. 862n. 



284 ENGINEER & ENGINEERING CONTRACTS— PRECEDENTS 

Contractore 22. The contractors shall at their own expense provide the 
[wa^'^"^* whole of the materials of every description (except those here- 
nmteriais, jp^fter specified to be provided by the company), together with all 
the machinery, plant, engines, pumps, scaffolding, centre-tools, and 
implements of every kind and description whatsoever, both per- 
manent and temporary, for the due and expeditious commencement, 
prosecution, and completion of the works to be included in this 
contract, the whole to be finished in a most perfect and workman- 
like manner, with good and approved materials, under the direction 
and superintendence and to the entire satisfaction of the company's 
engineer. 
Conduct of 23. The works are from the commencement to be carried on in 
such degree of despatch as in the opinion of the engineer shall be 
proportioned to the time with which the whole is expected to be 
executed ; and in case the contractors shall not commence the 
works at the proper time, or shall not continue them with reason- 
able despatch (possession of the land or such portions thereof as in 
the judgment of the engineer shall from time to time be required 
to be given, having been first given to the contractors), or in case 
the contractors shall not provide good and sufficient materials, or 
shall not employ as many suitable men, horses, engines, waggons, 
barrows, temporary rails and sleepers, and all other plant and 
materials, and such number of fully and authorised, experienced 
and fit agents and overlookers as are in the opinion of the engineer 
required for the efficient and expeditious conduct of the works, or 
shall not conduct and execute the works to the satisfaction of the 
engineer, then and in any such cases, upon notice of complaint 
signed by the engineer being given to the contractors, and if upon 
such notice they do not proceed in the execution of the contract 
and with such despatch as aforesaid, or do not supply such good 
and sufficient materials as aforesaid, or remove any work or men, 
horses or plant of every kind, or agent or overlooker complained 
of, or if they shall wilfully make default in any respect in pro- 
ceeding with the execution of the works in a manner satisfactory 
On default to the engineer, the company shall have full power, by fourteen 
tractors days' noticc in writing, under the hand of the secretary or 
may com- engineer, to remove the contractors from the further execution of 
works. ^ the whole or any part of the works, and thereupon to employ any 
other person or persons to complete the same, and in the event of 
the company removing the contractors from the execution of the 
whole or any part of the works, then the company ^hall have full 
power, if they think fit, by themselves, their agents, servants, or 
other persons authorised by them to take possession of and hold all 
or any part of the contractors' materials, and all or any part of 
their waggons, horses, tools, implements and plant which may then 
be in or upon or near the works, or employed in or about the same, 
and to keep and employ the same, and any others they may find 
necessary in the further execution of the works or any part thereof, 
until the completion of the said works or for a less period, at the 
end of which time their waggons, horses and tools, implements, and 



I 



ENGINEEE & ENGINEERIXG CONTEACTS— PEECEDENTS 285 

plant, or such portion thereof as shall then be in existence, shall be 
returned to the contractors (but without any compensation for the 
use thereof, or the reasonable wear and tear in the meantime, and 
as to such of the said waggons, horses, tools, implements or plant, 
as shall then remain in the possession of the company, the same or 
any part thereof may be further retained by the company, if they 
shall think fit so to do, until the final settlement between the com- 
pany and the contractors in respect of the matters and works 
executed and left unexecuted by them under their contract, and as 
a collateral security to the company for the payment of any sum of 
money which may ultimately be found due from the contractors, 
and in all cases the costs attending such measures shall be borne by 
the contractors, and the company shall be entitled to deduct any 
extra expense they may have incurred from any moneys owing to 
the contractors, or from the proceeds of the sale of any part of the 
materials which the company under the circumstances may possess 
themselves of, and in default thereof they may sue the contractors 
or their sureties in any of His Majesty's Courts of law.i 

Permanent 24. The company shall provide the rails, chairs, and sleepers, 
and fish-plates, and the contractors shall find the whole of the 
remainder of the permanent way and materials and all labour 
necessary for the efficient laying of the permanent way, sidings, 
and other works hereby agreed to be executed by them, and the 
company shall have the power to reject any rails or other 
materials which may be damaged after being delivered to the 
contractors, and such rails or other materials shall be replaced 
by the contractors with new materials of equal quality to be 
approved by the engineer. 

DeUveryof 25. The company shall deliver the rails, and other materials to 

(ontractors. be provided by them as aforesaid, free to the contractors at any 
goods station on their existing line which they may select ; and the 
contractors shall take delivery of such materials at the stations 
they may select, and sign a receipt for them, and shall remove 
them thence to and along the works at their own costs, carefully 
stacking them in such places as may be convenient, until they are 
required for laying the permanent way ; and they shall be respon- 
sible for any loss or damage to the rails and such other materials so 
delivered to them as aforesaid. 

Payment of 26. The workmen employed by the contractors in this contract 
shall be paid in cash at least once every fortnight, in an office or 
offices to be erected for this purpose. 

Time for 27. The Contractors shall complete the whole of the works in 

Swo'/^?^ this contract ready in all respects for opening the railways on or 
before the expiration of three years from the date of this contract, 

r«naity. and the contractors shall pay to the company the sum of £500 
a week for every week's delay in so completing the works for public 
use, such weekly sum to be paid and recovered as and for liquidated 
damage8,-and not in the way of penalty, and the company shall be 

^ See also clause 1 as to vesting of plant, &c., in the company until the 
Dmpletion of the contract. 



286 ENGINEER & ENGINEERING CONTRACTS— PRECEDENTS 

at liberty to deduct or set off the same from or against any moneys 

to be paid by them under this contract.^ 

Acceptance 28. No work shall be considered as completed according to the 

eiSi^in^ contract unless accepted in writing by the engineer. 

Copies of 29. The contractors will provide at their own expense copies of 

*&)'tobl' the drawings and specifications which shall be required by them for 

SStractore^ the use of themselves, their agents, or workmen. 

Settlement 30. The contractors shall be paid for the works done in manne: 

by a'rmn^^ hereafter provided for, and in the event of the drawings or specifi- 

SuBtion. cations defining any work or finishings not mentioned or referred 

to in the schedule of prices, or in case of the contractors being 

lawfully required or necessarily obliged to execute any work not 

mentioned or provided for in the schedule, and such work being 

extended with the sanction of the engineer, the price to be paid b\ 

the company for such work shall be settled or agreed on between 

the engineer and the contractors, and should they be unable t(* 

agree thereon such prices shall be settled by arbitration under the 

provisions for arbitration ^ hereafter contained ; and in any such 

arbitration, so far as the same may relate to the prices to be paid 

for the division or removal of gas or water mains and pipes (other 

than service pipes), the arbitrators shall, in fixing such prices, have 

regard to and take into account any risks or contingencies which 

the contractors may incur or have incurred in or consequent upon 

such division or removal. 

me^t^oT ^^' '^^^ works, as they proceed, shall be measured every month 

works while in such manner, and by such persons as the engineer may detei- 

m progress. . i • i i • ^ i i 

mine upon and appoint, and the quantity of work done ascertained : 
and any assistance which the engineer may require for measurt 
ment taken on the ground, and all stakes, poles, and other article- 
which may, in the engineer's opinion, be required for setting out or 
taking measurement of the works, or any other cause whatevei 
shall be found by the contractors. 
Ss^te^is ^^- "^^^ contractors shall be at liberty to send their agent> 
Sente^"'^ with the company's measurer, in order, if practicable, that the\ 
engineer's may agree to the measurements : should the contractors neglect or 

decision to "r^ ° , , , , , . , 

be final. omit to Send such agents, or should no agreement in the measure 
ments be come to, then the measurements of the company 
measurer shall be accepted ; or in the event of any disagreement 
as to the measurements, the decision of the engineer shall be final 
and conclusive.^ 
SnSSoi8° ^^' ^^^ payments to be made by the company to the con- 
advanc? tractors in respect of this contract shall be made in such proportiouj 
as the engineer shall consider the works to have advanced, and thel 
amount of such payments shall be ascertained and calculated in 
manner herein provided, and according to the schedule of prices, 
and shall be made in cash, except as hereafter provided, upon 

* i.e. money payable under certificates which are due. 

' Under clauHc 38. 

3 The decision of the engineer cannot be re-opened on this point (clause 38 ; an<l 
Hee also Robins v. Goddard, [1905] 1 K. B. 294 ; Foster d- Dicksee v. Mayor, etc., oj 
Hastirujs, 1905, 87 L. T. 736). 



ENGINEEK & ENGINEEEING CONTEACTS— PKECEDENTS 287 



Guarantee 
fund. 



ipany 
to give all 
accessary 
notices. 



certificates signed by the engineer; and which certificates the 
company hereby agree that the engineer shall regularly make 
and give. Provided always, that £5 per cent, of each pay- 
ment shall be retained by the company as a guarantee fund, 
until such retentions shall amount to the sum of £30,000, after 
which the full amount of the certificates shall be paid to the 
contractors. 

34. The guarantee fund shall be applied in or towards making 
good any defect or unsoundness which shall be certified to the 
engineer as existing in the said railways, works or undertakings, or 
the material used in the formation or construction thereof, and any 
default or neglect of the contractors in relation to the premises, 
and also in making good any breach of covenant on their part ; 
but subject as aforesaid, one-half of the amount of the percentage 
which shall have been retained to form such guarantee fund (but 
without any interest or other income in respect of such percentage), 
shall, when the engineer has certified that the said railways, works, 
and undertakings are complete, and the same shall have been 
delivered over to the company, be paid in cash, except as is herein- 
after provided, by the company to the contractors ; and the other 
half thereof shall continue as a guarantee for the purposes afore- 
said, until twelve calendar months from the date of such certificate 
of completion, and until a certificate shall have been signed by the 
engineer of the due and proper maintenance of the railways, 
undertakings, and works, during such period of twelve calendar 
months as aforesaid, and of the first acceptance of the railways 
and works under this contract, when such other half of this 
guarantee fund, or of the surplus thereof, if any, as aforesaid, 
shall be paid to the contractors in cash, except as is hereinafter 
provided. 

35. The company shall give all notices necessary to be given to 
all public or local bodies or companies, or to any other person or 
persons whosoever, and shall do all acts of the like kind which 
shall be necessary in order to the commencement or prosecution of 
any of the works hereby contracted for, other than such as may be 
required by the contractors for temporary purposes, and the com- 
pany shall use their best endeavours to procure the consent or 
approval of any such bodies, companies, person or persons, and all 
expenses incurred for and in the giving of such notices or obtaining 
such consent or approval, or consequent thereon, or in order to the 
compliance with any condition of such consent or approval shall be 
borne and paid by the company ; and in case by reason of the not 
giving of such notice or notices or not doing such acts as aforesaid, 
or in case of any other obstruction to the progress of the works 
occasioned by the acts or defaults of the company in these respects, 
any delay in the progress or completion of the works shall arise 
or be occasioned, then the time of such delay shall be added to the 
time agreed on for the completion of the works without prejudice 
to any claim to compensation for damage, if any, sustained by the 
contractors by reason of such delay. 



288 ENGINEEK & ENGINEERING CONTRACTS— PRECEDENTS 

CJompany 36. PROVIDED ALWAYS that it shall be lawful for the company, 

part of con- upon giving from time to time one calendar month's previous 
contractors notice in writing of such their intention, to issue or transfer to 
instoc ^^^ contractors in lieu of any sum not exceeding in the whole one- 
half the amount of any cash payment then due and to be made bv 
the contractors, £5 per cent, stock of the company, and the las 
payment for the time being represented by stock in the hands o 
the contractors by virtue of such issue or transfer shall carr\ 
interest at the rate of £6 per cent, per annum as against th. 
company for the time, in respect of such stock being issued or 
transferred until such stock shall be realised, and the dividends 
on such stock shall belong to the company : And the contractors shall 
from time to time be at liberty at their discretion to realise such 
stock, and give credit for the net proceeds thereof, and the differ- 
ence between such net proceeds and the cash payments represented 
by the stock so realised shall be adjusted in the accounts of the 
company and the contractors on the occasion of the next certificate 
following each realisation : And at the time prescribed for payment 
to the contractors of the first instalment of the guarantee fund, 
such stock as shall then remain unrealised shall be realised, and a 
final adjustment of accounts, except as to the guarantee fund, shall 
be made, and the balance paid in cash : And as to the guarantee 
fund the company shall be at liberty, when and as the same shall 
be payable, to pay without previous notice one-half thereof in cash 
and the other half thereof in such stock as aforesaid at the market 
price of the day.^ 
to°e!S*2te^ 37. The contractors on the execution of these presents shall 
bond. enter into and execute a joint and several bond (of which a copy 
has been submitted to and approved of by the contractors) in the 
penal sum of £50,000, for the due execution of and performance of 
all the works, matters, things, and presents aforesaid, and the com- 
pletion thereof, in the manner and subject as aforesaid. 
Arbitrotion 33 The matters herein referred to and specified as being in case 
of difference subject to settlement by arbitration shall, in case tht 
necessity for such arbitration shall arise, be referred to A. B. oi 
, and him failing, to an engineer, to be nominated by 
the President of the Institution of Civil Engineers; And every 
such arbitration and the award to be made thereupon shall be final 
and conclusive.2 

Agreement 39^ AnD IT IS HEREBY AGREED AND DECLARED by and between 

may be "^ 

made a rule the Said parties to the said presents that it shaJl be lawful for 

of court. . 1 <• 1 1 1 1 1 f TT- 

either of them to cause these presents to be made a rule oi xli- 
Majesty's High Court of Justice. 

In WITNESS whereof the contractors have hereunto set their 
hands and seals, and the company have caused their common seal 
to be affixed the day and year first above referred to. 
The Schedule above referred to. 

* As to non-payment by contractors of interest on stock transferred to them in 
payment, see Alcoy <h Gandia lily. Co. v. Greenhill, 1898, 79 L. T. 257. 

* This clause restricts arbitration to those clauses only where it is expressly 
mentioned. For procedure, see Arbitration Act, 1889. 



tion clause. 



ENGINEEE & ENGINEEEING CONTEACTS— PEECEDENTS 289 



11. AGREEMENT f(yr the Construction of a Steamship. 

AN AGEEEMENT made the day of 19 , 

Between [shipbuilders], of, &c., of the one part, and the 
Steamship Company, Limited, having registered offices at , 

of the other part. Whereby it is agreed as follows : — 
tote^reta- 1. In this agreement the term " the contractors " means the said 
[shipbuilders], and the survivor of them, their or his executors or 
administrators and assigns; the term "the company" means the 
said Steamship Company, Limited, their successors and 

assigns ; the term " the parties " includes the contractors and the 
company ; the term " the specifications " means the detailed speci- 
fications, plans, and drawings marked A., B., C, D., and E., and 
signed by , on behalf of the contractors, and by [company's 

engineer], on behalf of the company ; and the term " the engineer " 
includes the said [company's engineer], and any other the consulting 
engineer for the time being of the company, and any duly qualified 
deputy-engineer whom the said [company's engineer], or other such 
consulting engineer as aforesaid, shall appoint ; And the said com- 
pany's engineer and any other consulting engineer for the time 
being of the company is accordingly hereby authorised from time 
to time to appoint and in his discretion to remove a deputy-engineer 
as and when he shall think proper; Provided always that the 
secretary of the company shall notify in writing to the contractors the 
appointment or removal of any such consulting or deputy-engineer 
as aforesaid not less than days thereafter. 



Contractors 2. The contractors shall build, equip, and completely finish for, 
and equip and deliver at the time hereinafter mentioned to the company, a 



steamer. 



steamship, for the purpose of passenger and goods traffic between 

and , with proper and suitable engines, 

machinery, rigging, fittings, and equipment, according to the 

specifications. 

Character of 3. The said steamship shall be built and equipped in all par- 

^^'^' ticulars according to the requirements of the specifications, with 

such additions, alterations, and omissions only (if any) as may be 

made in accordance with the stipulations herein contained ; and the 

whole of the materials and workmanship shall be of the best quality 

and description, and such as is in accordance with Lloyd's Eules, 

and such as to entitle the said steamship to be classed A in 

Lloyd's Eegistry. 

Steamship, 4. The said steamship shall, from and after the execution of 

eome forth- this agreement, and all the engines, machinery, fittings, and 

property materials intended for the construction or equipment of the said 

w^panyi Steamship shall, from and after their respective appropriation for 

^ This clause is intended to take the unfinished ship out of the order and dis- 

SMition of the contractors in case of their bankruptcy. See, on this point, If^ood v. 
vssell, 1822, 5 B. & A. 942 ; Wood v. Bell, 1856, 6 E. & B. 355 ; Ex paiie LamUon, 
1875, L. R. 10 Ch. 405 ; M'Bain v. Wallace, 1881, 6 App. Cas. 688. See Ex parte 
BodgUn, 1875, L. R. 20 Eq. 746, as to how far an unfinshed ship is within the Bills 
of Sale Acts. 

VOL. V. 19 



to engineer. 



290 ENGINEEK & ENGINEEKING CONTRACTS— PRECEDENTS 

such purposes, become and continue to be the absolute property of 
the company, but shall until the completion and delivery of the 
said steamship as aforesaid be at the risk of the contractors, who 
shall make good all damage which may happen to the said steam- 
ship, engines, machinery, fittings, or materials, by fire or otherwise. 
The contractors shall immediately upon the execution of this 
agreement [or, if the work has not been commenced, so soon as the keel 
shall have been laid], mark the said steamship as belonging to the 
company, conspicuously, by painting thereon or affixing thereto, 
and keeping so painted or affixed, the style or name of the com- 
pany ; and so soon as the said steamship shall have been launched, 
the company shall be duly registered as the owners thereof. 
Drawings, 5. AH drawings, plans, and estimates which shall from time to 

submitted time be prepared by the contractors for the purposes of the con- 
struction and equipment of the said steamship and its appurtenances 
shall be submitted to the engineer for his approval, and shall not be 
used unless and until initialled by him in token of such approval. 

Work to be Q^ The wholc of the work shall be executed under the super- 
done under . II . 1 • 1 e 
his super- vision of the engineer, who shall at all times during the progress of 

the work have full liberty of access to the said steamship to survey 
and examine the same and the materials used or intended to be used 
in the construction and equipment thereof, and to test all such 
materials as he shall think proper, and to reject such as he shall 
find not to be in accordance with the specifications or with the 
stipulations herein contained, and thereupon the contractors shall, 
at their own expense, remove the materials so rejected and replace 
the same with others of proper quality. 
Trials at 7. The said steamship shall be tried at sea as often as the 

engineer shall think advisable, and the contractors shall at their 
own expense furnish and supply the crew, and all fuel and other 
things necessary for such trials, and also pay all expenses of the 
marine insurance ; the engineer and any of the directors of the 
company and any other persons authorised in writing by the 
secretary of the company may attend every such trial as aforesaid 
on board the said steamship, and the steamship shall not be deemed 
to have been completed, nor shall it be delivered, until the engineer 
has certified in writing that a final satisfactory trial thereof has 
taken place. 
Extrawork, 8. If the company or the engineer shall desire to make any I 
aiterauons, g^^^jj^^JQj^^ qj. alteration to, or omission from, the works hereby agreed | 
to be executed, or to have any extra work executed thereon or in 
relation thereto, notice of such addition, alteration, omission, or 
extra work, together with instructions for the execution of the 
works in accordance therewith shall be given to the contractors 
in writing signed by the engineer, and thereupon the contractors 
shall execute the works in accordance with such notice and instruc- 
tions, and upon terms as to prices and otherwise to be mutually 
agreed upon between the parties in writing : Provided always 
that the contractors shall not be deemed to have any authority to 
make any such addition, alteration, or omission, as aforesaid, nor to 



sea. 



EXGINEEE & ENGINEERING CONTEACTS— PRECEDENTS 291 



Contrcact 
not to be 
assigned. 



Provision 
in case of 
bankruptcy 
or default of 
contractors. 



'I 



Delivery of 
steamship 
to the 
company. 



Extension 
of time. 



PajTnent. 



make any claim or demand for the value thereof, or otherwise in 
regard to the same, until such notice and instructions shall have 
been received by them as aforesaid. 

9. The contractors shall not, without the previous consent in 
writing of the engineer, make any sub-contract with regard to the 
work hereby agreed to be done, nor assign nor sublet this contract 
or any part thereof. 

10. If at any time before the completion of the said steamship 
the contractors shall become bankrupt, or enter into any arrange- 
ments for composition with their creditors, or shall make default in 
building, equipping, or completing the said steamship in accordance 
with the stipulations herein contained, or shall in the opinion of the 
engineer be guilty of any unreasonable delay in carrying out the 
works hereby agreed to be executed, then and in any such case it 
shall be lawful for the company to enter into and upon the building 
yard of the contractors, and to take possession of the said steam- 
ship in its then state, and of all engines, machinery, fittings, and 
materials intended and appropriated for the purposes of the same, 
and either themselves to complete, or employ any other person or 
persons whom they shall think fit to complete, the said steamship ; 
or at their option, and in their absolute discretion, to sell the said 
steamship, engines, machinery, fittings, and materials, and to apply 
the proceeds of such sale in or towards repayment of all sums paid 
by the company to the contractors under or by virtue of their agree- 
ment, and of all expenses and losses incurred by the company by 
reason of such bankruptcy, insolvency, default, or delay as aforesaid 
or otherwise in relation to the said steamship : Provided always 
that the company shall be entitled to claim, or prove in bankruptcy 
or otherwise, for damages for any loss or injury so incurred by them 
as aforesaid, and which shall not be covered by the proceeds of any 
such sale as aforesaid. 

11. The contractors shall deliver to the company the said steam- 
ship complete for sea in all respects as aforesaid, according to the 
said specifications, afloat and safely moored at , and classed 
at Lloyd's as aforesaid, on or before the day of 

19 ; or otherwise the said contractors shall pay to the company 
the sum of £ by way of liquidated damages, and not of 

penalty, for each and every day after the said day of 

, during which the said steamship shall remain not 
delivered as aforesaid. 

12. The contractors shall not be entitled to any extension of the 
time mentioned in the 11th article of this agreement by reason 
of any addition or alteration or extra work whatsoever, unless a 
certificate by the engineer shall be included in or appended to such 
notice and instructions as aforesaid extending the time for the 
completion and delivery of the said steamship, and in such case the 
time shall be extended only till such date as is mentioned in such 
certificate. 

13. The price and consideration for the said steamship to be 
built, equipped, completed, and delivered according to the stipula- 



292 ENGLISH CHANNEL DISTEICT 

tions herein contained shall be the sum of £ , and shall be 

paid by the company to the contractors at the times and in manner 
following, that is to say : one instalment or sum of £ 
upon the execution of this agreement ; a further instalment or sum 
of £, so soon as the engineer shall have given his certificate 

in writing that the said steamship is in frame, and that the work 
up to that point has been executed in accordance with the stipula- 
tions herein contained, and to his satisfaction in all respects; a 
further instalment or sum of £ so soon as the engineer 

shall have given his certificate in writing that the plating is com- 
plete, the deck laid, and the engines and machinery on board, and 
that the work up to that point has been executed in accordance 
with the stipulations herein contained, and to his satisfaction in all 
respects, and the last instalment or balance of when the 

engineer shall have given his certificate in writing that the said 
steamship has been safely launched and classed at Lloyd's as afore- 
said, and has been finally tried at sea to his entire satisfaction, in 
accordance with the stipulations herein contained and the said 
specifications, and that the said steamship is built and equipped 
and completed in respect of materials and work and in all other 
respects to the satisfaction of the engineer and the said contractors 
shall have delivered the said steamship afloat and safely moored 
at aforesaid. 

Arbitration 14. If any dispute shall arise between the contractors and the 
company touching anything contained in this agreement or in the 
specifications, or in any way touching the building, equipping, 
furnishing, completing, or delivery of the said steamship, the same 
shall be referred to the engineer \ot to a competent engineer, to 
be agreed upon between the parties, or in case of difference to be 
nominated by the president for the time being of the Institute of 
Civil Engineers], whose decision shall be final. 

Copy of Specifications, &c. 



clause. 



English Channel District- —The English Channel 
pilotage district is defined by sec. 618 of the Merchant Shipping Act, 
1894, as consisting of the seas between Dungeness and the Isle of 
Wight. The examination and licensing of pilots within this district 
is by the same section imposed on the Trinity House (g.n^. 

English Information-— See Informations. ' 

Engravings-— See Copyright. 

Engross; Engrossing; Engrossment. — 1. (4 

Copying out a statute or legal instrument in a large, fair, legal hand; 
Q)) the copy so made. Until 1849 all Acts of Parliament when passed 
were engrossed in black letter on the Parliament Poll. The history of 
the practice and of the handwriting used is given in Clifford on Private 
Bill Legislation, vol. i. pp. 317-322. In 1849 vellum prints of the Acts 



IENLAEGEMENT OF LONG TERMS 293 

were substituted for the engrossments. These terms, as used in this 
sense, are derived from ingrossare, engrosser, to write large. 
2. To buy up standing corn or victuals {B. v. Waddington, 1800, 
1 East, 143, 167; 6 R. E. 238) wholesale for the purpose of regrating, 
i.e. retailing at monopoly prices (5 & 6 Edw. vi. c. 14, s. 2). This 
corresponds to what is in modern parlance termed making a " corner " 
in a commodity. In this sense it is derived from French en gros, as 
distinguished from en detail. 

During the Middle Ages in England the legislature made repeated 
attempts, in accordance with mediaeval notions of commerce and political 
economy, to repress as a crime the engrossing of commodities, and prevent 
as far as possible all middlemen between producer and consumer. It is 
not improbable that the intervention was also caused by the fact that 
engrossing or forestalling rendered it unnecessary for the producer to 
take his commodities to an open market or fair, and pro tanto reduced 
the market tolls and profits. There is the more reason for this view 
that legislation against engrossing went on pari passu with the practice 
of granting monopolies until that was put a stop to by the Statute of 
Monopolies, 21 Jac. I. c. 3; (see Pike, Hist. Cr. vol. i. pp. 101, 294). 
Many statutes were passed, beginning with the Judicium Pillorie, 
51 Hen. iii. st. 6 (Ruff head), to deal with forestalling, regrating, and 
ill engrossing. The most important are those of Edward vi. (5 & 6 Edw. 
I VI. c. 14) and George iii. (12 Geo. iii. c. 71). The latter Act was repealed 
■ by 7 & 8 Vict. c. 24, which absolutely abolished the offences of badger- 
ing, engrossing, forestalling, and regrating, whether at common law or 
under any statute. The Act (s. 4) contains a reservation that it is not 

(to be read as applying to the offence of knowingly and fraudulently 
spreading or conspiring to spread any false rumour with intent to 
enhance or decry the price of any goods or merchandise (Scott v. Broivn, 
[1892] 2 Q. B. 724), or to the offence of preventing or endeavouring to 
prevent by force or threats any goods or merchandise being brought 
to any fair or market. 

The abolition of the offence makes it unnecessary to go into detail 
as to its elements or the decisions and proceedings with respect to it. 
The authorities on the old law are collected in Hawk. F. C, bk. i. c. 80 ; 
Burn's Justice, 28th ed., tit. "Forestalling;" 4 Black. Com. 158, 159; 
and the old law is now only of historical interest except so far as it 
is necessary to explain the decisions with respect to combinations 
in restraint of trade (see Combination; Conspiracy; Restraint of 
Trade), or to consider the legality of trusts and syndicates, which in 
England have not much troubled the Courts. In fact, combinations 
which were at one time subject of indictment (Cotisin^ v. Smith, 1807, 
13 Ves. 542; 33 E. R. 397; 9 R. R. 217; B. v. Webb, 1811, 14 East, 
406) are now the ratio essendi of joint-stock companies or commercial 
syndicates (the 3fogul Case, [1892] App. Cas. 25). 

In the United States much Utigation has arisen, and is pending, 
with respect to the legality of trusts and combinations for engrossing 
and monopolising commodities. See Bishop, Crim. Law (U.S.), voL i. 
88. 518-529 ; Spelling on Trusts and Monopolies. 

Enlargement of Long* Terms.— Certain long terms of 

years can now under the provisions of the Conveyancing Acts (sec. 65, 
Act of 1881, and sec. 11, Act of 1882), be enlarged into estates in fee 
simple. 



294 ENLARGEMENT OF LONG TERMS— PEECEDENTS 

In order that the statute may apply to a lease, it must fulfil all the 
following requirements (s. 65) : — It must have been originally for a term 
of not less than 300 years, of which 200 years is still unexpired. It 
must contain no trust or right of redemption affecting the term in 
favour of the person entitled to the reversion upon the term. It must 
not be subject to any rent (having a money value) incident to the rever- 
sion ; or if any rent having a money value was originally so incident, 
such rent must have been released or become barred, or in some way 
ceased to be payable. 

The following persons have power by deed to enlarge the term into 
a fee simple, which vests in the person in whom the lease was previously 
vested, and they have this right whether the term is subject to any 
incumbrance or not : — (1) A person beneficially entitled in right of the 
term to possession of land comprised in it (if a woman married before 
January 1, 1883, then with the concurrence of her husband ; if married 
on or after that date, or if entitled for her separate use, then without 
such concurrence); (2) any person in receipt of income as trustee in 
right of the term, or in whom the term is vested on trust for sale ; (3) 
any person in whom, as personal representative of any deceased person, 
the term is vested. 

The section further provides that the fee simple so acquired shall be 
subject to the same trusts, powers, executory limitations, rights, equities, 
and covenants relating to user, and the same obligations as the term. 

The section also provides for the cases where the residue of the term 
has been settled by reference to other land being freehold land. The 
enlarged fee simple includes all mines and minerals. 

The section does not apply to any term liable to be determined by 
re-entry for condition broken, or any term created by sab-demise where 
the superior term could not be enlarged (s. 11, supra). 

The reservation of "one silver penny," if lavjfidly demanded, has 
been held to be a rent having no money value {Be Chapman and Hobhs, 
1885, 29 Ch. D. 1007), but a rent of three shillings reserved upon a term 
of 1000 years was held to have a money value, and the statute not to 
apply {Re Smith and Stott, 1883, 29 Ch. D. 1009^.). 

After non-payment of rent for a long period (although no Statute of 
Limitations applies to bar rent under a lease) it may perhaps be pre- 
sumed to have been released (see Eldridge v. Knott, 1774, Cowp. 214; 
Ecclesiastical Commissioners v. Parr, [1894] 2 Q. B. 432). In such cases 
a jury might find that the rent had been released {Blaiherg v. Keeves, 
[1906] 2 Ch. 175). 



PRECEDENTS. 



I. ENLARGEMENT of a Term of Years by absolute Legal and 
Beneficial Owner, by End&i'sement on the Conveyance to him of 
the Leaseholds. 

iMjdttmUon KNOW ALL MEN by these presents that the within-named 
ment. [owner], as the person beneficially entitled in right of the within- 

mentioned term of [five hundred] years, to the possession or receipt 
of the rents and profits of the lands comprised in the said term, 
hereby declares that from and after the execution of these presents, 



ENLAEGEMENT OF LONG TERMS— PEECEDENTS 295 

the said term of [five hundred] years shall be, and the same is hereby 
enlarged into a fee simple. In witness, &c. 



II. ENLARGEMENT of a Term by Execuiais of Deceased Owner 
by Deed Poll supplemental to a Conveyance of the LeaselwUs 
to the Testator. 



llxordiuvi. 



Eecitals : 
of assign- 
ment of 
term to 
testator ; 



TO ALL TO WHOM these presents shall come [executor], 
of , in the county of , Esquire, and the Rev. 

[executor], of in the county of , clerk in holy 

orders, send greeting. Whereas these presents are supplemental 
to an indenture (hereinafter called the principal indenture) dated 
the day of 19 , and made between [vendoi-], 

I of the one part, and [testatoi'], of the other part, whereby all that 

messuage or dwelling-house and the orchard and close adjoining 
thereto, situate at , in the county of , and in 

the principal indenture more particularly described, were assigned 
to the said [testator] for the residue of a term of [five hundred] years 
created therein, together with other lands, by an indenture of lease, 
dated the day of 1760, and made between 

[parties] at a peppercorn rent, and the said indenture of lease con- 
tains no clause or provision whereby the said term is liable to be 
determined by re-entry : And whereas the said [testator] duly made 
and executed his will, dated the day of 19 , 

and thereby, after giving the several specific and pecuniary legacies 
therein mentioned, gave, devised, and bequeathed all the residue of 
his real and personal estate to the said [executoi's], upon the trusts 
declared by his said will, and the said [testato)'] thereby appointed 
the said [executors] to be the executors thereof : And whereas the 
and probate said [testator] died on the day of 19 , being 

at the date of his death entitled to the messuage or dwelling-house 
and lands comprised in the principal indenture for the residue of 
the said term, and without having revoked or altered his said will, 
which was on the day of 19 , duly proved 

by the said [executors] in the Principal Registry of the Probate 
Division of His Majesty's High Court of Justice. NOW THESE 
PRESENTS WITNESS, that the said [executoi's], as such personal 
representatives as aforesaid, do, and each of ihem doth hereby, 
declare that from and after the execution of these presents, the said 
term of [five hundred] years shall be and the same is hereby enlarged 
into a fee simple as to the said messuage and premises comprised 
in the principal indenture. In witness, &c. 




Testatum. 
Declaration 
of enlarge- 
ment. 



Exordium. 



K«cita1s : 
of settle- 
ment; 



III. ENLARGEMENT of a Term by a Tenant far Life of a 
Settled Estate by Deed Poll supplemental to the Settlement. 

TO ALL TO WHOM these presents shall come [tenant for 
life], of , in the county of , Esquire, sends 

greeting. Whereas these presents are supplemental to an inden- 
ture of settlement, hereinafter called the principal indenture, dated 
the day of 19 , and made between [parties] : 



296 



ENLARGER L'ESTATE 



of tide of And whereas the said [tenant foi' life] is now, under or by virtue 
Ufe'toterm. of the principal indenture, beneficially entitled, in right of the term 

oi [Jive hundred] ye&rs therein mentioned, to the possession or receipt 

of the rents and profits of, among other lands and hereditaments, 
Tetatum, the lands comprised in the said term. NOW THESE PRESENTS 

WITNESS, that the said [tenant for life], as the person so bene- 
Deciaration ficially entitled as aforesaid, hereby declares that from and after 
ment. the execution of these presents the said term of [five hundred] years 

shall be and the same is hereby enlarged into a fee simple. In 

WITNESS, &c. 



Parties. 

Recitals: 
no one 
absolutely 
entitled to 
term; 



title of 
tenant for 
life. 



Testatum. 



Enlarge- 
ment of 
term. 

Further 
Testatum. 



CJonveyance 
to uses of 
settlement. 



Parcels. 



Habendum. 



IV. DEED of ENLARGEMENT of a Term and of Conveyance of 
the Fee Sim/pie thus acquired to the Uses of a Settlement {by 
Endorsement on the Settlement). 

THIS INDENTURE, made the day of 19 , 

Between the within-named [tenant for life], of the one part ; and 
the within-named [trustee] of,&c.,a,nd[trustee] of,&c.,of the other part. 
Whereas no person entitled under the limitations contained in the 
within-written indenture, as tenant in tail in remainder to the free- 
hold hereditaments thereby settled hasattained the age of twenty-one 
years : And whereas the said [tcTiant for life] is now, under or by 
virtue of the within-written indenture, beneficially entitled in right 
of the term of [five hundred] years therein mentioned to the posses- 
sion or receipt of the rents and profits of, among other lands and 
hereditaments, the lands comprised in the said term. NOW THIS 
INDENTURE WITNESSETH, that the said [tenant for life], as the 
person so beneficially entitled as aforesaid, hereby declares that 
from and after the execution of these presents, the said term shall 
be and the same is hereby enlarged into a fee simple. AND THIS 
INDENTURE ALSO WITNESSETH, that for the purpose of 
settling the fee simple acquired by the enlargement of the said 
term, in the manner in which the same is liable to be settled, the 
said [trustees], as trustees, hereby convey to the said [tenant for life], 
All the lands and premises, the fee simple whereof has been 
acquired and vested in them by virtue of the declaration herein- 
before contained. To HOLD the same premises unto the said [tenunt 
for life], and his heirs, To THE USES, upon the trusts, and with, 
under and subject to the powers, provisions, and declarations 
contained in the within-written indenture, or such of the same as 
are now subsisting and capable of taking effect. In, witness, &c. 



Enlarger I 'estate. — A species of release, the words, viz., 
•'enlarging,' the estate," having reference to the way by which the 
release enures, e.g. a release to a tenant for life or years by a remainder- 
man or a reversioner of his remainder or reversion, the life tenant 
thereby acquiring an estate in fee-simple. But the releasee must have 
a vested estate giving a present or future right of enjoyment for the 



ENLISTMENT (AEMY) 297 

release to work upon ; for if there be a lessee for years before he enters, 
and is in possession, and the lessor releases to him all his right in the 
reversion, such release is void for want of possession in the releasee 
(Litt. s. 459 ; 3 Black. Coin. 324). There must also be privity of estate 
between the releasor and releasee; that is to say, the two estates 
together must make one and the same at law. The phrase is used to 
distinguish this species of release from the other four enuring by way of 
(1) mitter Testate (e.g, coparceners ; see Parcenees), where the whole 
estate passes; (2) mitter le droit (by way of passing a right); 
(3) extinguishment (extinguishing a right); (4) entry and feoflment; 
in all which four the fee simple may be conveyed without the use of 
words of inheritance (2 Black. Com. loc. dt. ; Stephen's Commentaries, 
vol. i. c. xvii.). 

Enlistment (Army).— By the Statute 16 Car. I. c. 28, 1640, 

the impressment, or compulsory service, of men in forces raised by the 
sole power of the Crown to serve outside the country was declared to 
be illegal, " save in case of necessity of invasion, or by reason of tenure." 
Enlistment or engagement for service of soldiers in the army as sanc- 
tioned by the annual Army Acts passed since 1689 has been entirely 
voluntary, and is now regulated by the Army Act, 1881, 44 & 45 Vict. 
c. 58, ss. 76-101, and subsequent amendments. 

1. Period of Service for which the Soldier Engages. — By sec. 76 the 
period is for twelve years, or for such less period as may be from time 
time fixed by the King's Eegulations, but not for any longer period ; and 
this period for which a person enlists is the term of the "original 
enlistment." The conditions of enlistment for the various branches of 
the service, and the conditions of transfer from one corps to another, 
are prescribed by the King's Regulations (see para. 1742, and the 
Eegulations for Recruiting (1903) therein referred to). 

The original enlistment may be {a) either for the whole term in 
"army service," or {h) for such portion of the original enlistment as is 
from time to time fixed by the Secretary of State, and specified in the 
attestation paper {infra) in " army service ; " and for the residue of the 
said term in the reserve, i.e. the Army Reserve, under the Reserve 
Forces Act, 1882, 45 & 46 Vict. c. 48. But these conditions may be 
varied, and a soldier may be permitted to go into the reserve at once, 
or to serve all his time up to the term of his original enlistment with 
the colours, or to extend his original enlistment up to the permitted 
limit of twelve years. So, too, a man may be permitted to re-enter the 
army service for any unexpired residue of his original enlistment, or for 
any period not exceeding the twelve years (s. 78). For the detailed 
regulations at present in force, see King's Regulations, paras. 1781-1787. 

The service is reckoned from the date of the attestation ; but in case 
of desertion or fraudulent enlistment (see infra) the soldier will forfeit 
all his prior service, and be liable to serve for his full term reckoned