Power of a Judge,

Commissioner in cases of contempt.

Appeal given.

Circuit or County Judge appointed a Commissioner may appoint a proper person to act for him as Judge while he is executing the Commission,

Instrument of

appointment to be in

such triplicates shall be deposited, &c.

set forth in the Schedule to this Act annexed marked B. (2) with such alteration as
may be necessary to adapt such form to the circumstances of the case.

C. And be it enacted, That every such Commissioner when engaged in the
execution of the duties of his office as such Commissioner, shall have the like power
and authority to commit for contempt against him and his orders, as by law is or shall be
vested in a Circuit or County Court respectively, for the like contempts against it or
its orders, subject always nevertheless to an Appeal from the decision of such
Commissioner, in every such case, to the Select Committee for the time being charged
with the disposal of such Election Petition.

CI. And be it enacted, That upon the issue of any Commission to any Circuit or County Judge appointing him a Commissioner for the examination of witnesses under this Act, it shall and may be lawful for such Judge, by an Instrument in writing under his hand and seal, to name any other Circuit Judge, if the Judge so appointed such Commissioner shall himself be a Circuit Judge, or any other County Judge if such Judge shall himself be a County Judge, or to name any other person of the degree of Barrister at Law of that section of the Province to the judiciary of which such Circuit or County Judge shall belong, to sit for him as such Circuit or County Judge, and in every other capacity, whether judicial or otherwise, belonging or attached to the Office of such Circuit or County Judge as such Judge, during the time that such Commission for the examination of witnesses under this Act shall be in force unreturned, and for twenty days after the same shall have been superseded or returned by the Judge to whom the same shall be directed.

CII. And be it enacted, That every such Instrument of nomination shall contain a triplicate; and where recital of the Commission which shall have rendered such nomination necessary, and shall be executed in triplicate, one of which triplicate originals shall, by the Judge making the same, be filed in the Office of the Clerk of such Circuit or County Court, or with any Clerk of such Court if there be more than one, another of them be delivered or sent to the person so named to sit for such Judge, and the third be transmitted to the Provincial Secretary, for the information of the Governor of the Province.

Governor may annul

appointment and appoint another

person.

Powers of persons appointed to act

instead of Circuit or County Judges,

Proviso.

CIII. And be it enacted, That in the case of every such nomination, it shall and may be lawful for the Governor of the Province, by an Instrument under his Privy Seal, to annul such nomination, and if he shall think fit so to do, to name by the same or any other Instrument under his Privy Seal, some other person legally qualified to have been named by such Judge himself, to sit for such Judge instead of the person so named by such Judge as aforesaid.

CIV. And be it enacted, That in every such case the person so nominated to sit for such Judge shall, so long as his nomination shall be unannulled, and the said Commission for the examination of witnesses under this Act shall remain in force unreturned, and for twenty days after such Commission shall have been either superseded or returned, have full power and authority to sit for such Judge as such Circuit or County Judge, and in any other capacity whether judicial or otherwise belonging or attached to the office of such Circuit or County Judge, in all Courts and on all occasions wherein such Judge by or under his Commission as such Judge, or otherwise according to Law, may be required or have occasion to sit or hold any Court whatsoever, or any Sittings or Sessions of any such Court or any other Court, or otherwise to act either singly or with others, and either at Chambers or elsewhere, in the discharge of any of the duties, whether judicial or of any other character, which by the Commission of such Judge as such Circuit or County Judge belong or by law attach to his office as such Circuit or County Judge; and all judgments, decisions, decrees and acts pronounced, given, made or done by such person during such time, shall be as valid and effectual in law to all intents and purposes whatsoever, as if the same had been so pronounced, given, made or done by such Judge himself: Provided always nevertheless, firstly, That in all cases in which the Governor shall annul any such nomination as aforesaid, all such judgments, decisions, decrees and acts pronounced, given, made or done by the person whose nomination shall have been so annulled previous to his receiving notice of such nomination

1

having been so annulled, shall be and remain as valid and effectual in Law to all
intents and purposes whatsoever, as if such nomination had not been so annulled as
aforesaid And provided also, secondly, That it shall and may be lawful for such Judge Proviso:
notwithstanding any such nomination, whether made by himself or the Governor of
this Province as aforesaid, while the same shall be in force and without thereby annulling
or superseding the same, to perform himself, if the execution of such Commission for
the examination of witnesses under this Act shall not prevent his doing so, either the
whole or any part of the duties of his said office of Circuit or County Judge, as if such
nomination had not been made as aforesaid.

CV. And be it enacted, That in the case of every such nomination as aforesaid,
whenever from illness of the person so nominated to sit for such Judge, or from any
casualty, it may happen that such person shall not arrive in time, or shall not be able
to open any Court or any Sittings or Sessions of any Court on the day appointed for
that purpose, it shall and may be lawful for the Clerk or Deputy Clerk of such Court,
Sittings or Sessions, after the hour of eight o'clock in the afternoon of such day, to
adjourn by proclamation any such Court, Sittings or Sessions which shall be appointed
to be held on that day to an early hour on the following day, not being a Sunday or
Statutory Holiday, to be by him named, and so from day to day, adjourning over such
Sundays and Statutory Holidays, until such person or the Judge for whom he was
named to sit shall arrive to open the same, or until he shall receive other directions
from such Judge, or the person so appointed to sit for such Judge as aforesaid.
CVI. And be it enacted, That every person who shall have sat for any such Circuit
or County Judge, by virtue of any such nomination so made under the authority of
this Act as aforesaid, shall for every day that he shall have so sat for such Judge, be
entitled to receive the sum of Fifty Shillings, and also in every case in which he shall
be obliged to travel from the place of his usual residence to perform such duty, such
further sum as shall be sufficient to cover the amount of his reasonable travelling
expenses in going to, remaining at, and returning from the same, the account of every
such person for such service to be rendered, taxed and allowed in the same
manner as other accounts for professional services rendered to the Government. And
the amount of every such account so taxed and allowed shall be paid to such person, or
his personal representative, out of the Consolidated Revenue Fund of this Province,
by Warrant to be issued for that purpose, in the like manner as other moneys, payable
out of such Fund are, or, for the time being, may be payable according to Law.

Power of Clerk to adjourn the Court in the person appointed to sit for the Judge.

case of non-arrival of

Allowance to persons

so acting for any

Judge.

How paid.

Commissioner may

employ Clerks and Bailiffs, &c.

CVII. And be it enacted, That for the taking down in writing Minutes of all the proceedings of such Commissioner in executing the duties imposed upon him by this Act, and of all such evidence as shall be given or produced before him, in as accurate a manner as may be, and for the proper and orderly conduct of his proceedings in this behalf, every such Commissioner shall have full power to appoint one or more Clerks, and such and so many Bailiffs and other Officers as he may deem requisite or necessary How paid, for that purpose, subject always nevertheless to the control and direction of the said Select Committee charged for the time being with the trial and disposal of such Election Petition, and which Clerks and other Officers shall respectively take before such Commissioner the oaths set forth for that purpose in the Schedule to this Act annexed marked B. (4) (5).

They shall be sworn.

CVIII. And be it enacted, That no person shall be appointed by such Commissioner Certain persons not to under this Act to be a Clerk, Bailiff or other Officer to assist such Commissioner as be Clerks, Bailiffs, &c. aforesaid, who shall have voted at the Election in question, or who shall have or claim any right or title to vote for the County, Riding, City, Town, Borough or place, respecting which the Election or Return complained of, or other subject matter of such Petition arose or happened, without the consent and approbation in writing of all

made.

the parties interested or concerned in such Election Petition: Provided always Proviso: when the nevertheless, that any objection to the appointment of such Clerk, Bailiff or other objection must be Officer, shall be made at the time of his being appointed, or at the first sitting of the Commissioners after such appointment shall have been made, otherwise any such

226 *

objection

Such appointments to be entered on minutes.

What documents

the Commissioner, by the Chairman of Committee.

objection shall be invalid and of none effect, and such appointment shall be valid and effectual to all intents and purposes.

CIX. And be it enacted, That a note of the appointment of every such Clerk, Bailiff or other Officer by such Commissioner, shall be made in the Minutes of such Commission, and be open at all reasonable times to the inspection of all parties interested or concerned in such Election Petition.

CX. And be it enacted, That the Chairman of the said Select Committee shall shall be transmitted to address to the said Commissioner a true copy of the Petition which shall have been referred to the said Committee, and of the said lists and disputed votes and statements of the several parties which shall have been delivered according to the provisions of this Act, together with a true copy of the Order made by the said Committee, specially assigning and limiting the facts or allegations, matters and things respecting which the said Commissioner is required and directed to examine evidence and to report the same, together with all such other documents and papers as the said Select Committee shall think proper, all which Warrants, Petitions, Orders and Papers, shall be conveyed to such Commissioner through the Post Office, in the manner hereinafter prescribed for the transmission to the proper Court of Recognizances taken and estreated, or otherwise proceeded upon under this Act.

Committee may be adjourned during the execution of the Commission.

Commissioner to open assigned, &c.; proceedings.

CXI. And be it enacted, That immediately after the completion of the proceedings aforesaid, the said Chairman of the said Select Committee shall thereupon report the proceedings of the said Committee to the House, and shall ask permission of the House for the said Committee to adjourn until such time as the Speaker shall by his Warrant in manner herein mentioned, direct the said Committee to re-assemble, and upon such permission being granted, it shall and may be lawful for the said Committee to adjourn accordingly; any thing herein contained to the contrary thereof in any wise notwithstanding.

CXII. And be it enacted, That on the day appointed in and by the Warrant his Court at the time appointing such Commissioner, and at such place as he shall have appointed for that purpose, between the hours of ten in the forenoon and four in the afternoon, the said Commissioner shall proceed to open his Court or commence his proceedings by reading the Warrant of the said Chairman of the said Select Committee, and also the copy of the Petition and other papers transmitted by the said Chairman, and the said Commissioner shall, before further proceeding on the business of his said Commission, take and subscribe the oath set forth in the Schedule to this Act annexed, marked B (3), which said Oath the said Commissioner shall take and subscribe in the presence of the parties interested or concerned in such Election Petition, or their Agents, or such of them as shall attend, and the taking of the same shall be noted in the Minutes of such Commission, and if any person shall act as a Commissioner in the execution of this Act without having first taken and subscribed such Oath, he shall for such offence forfeit and pay the sum of One Hundred Pounds.

He shall be sworn.

Penalty for acting before taking oath.

Sittings of the
Commissioner.

As to adjournments of such sittings.

In case of sickness,

to be made to the

CXIII. And be it enacted, That the said Commissioner shall sit every day, Sundays and Statutory Holidays only excepted, from the hour of ten in the morning till four in the afternoon, and shall never adjourn except by the consent in writing of all the parties to such Election Petition or their Agents, or by permission of the Select Committee appointed for the trial of such Election Petition, or in the case provided for by the next section of this Act, for a longer time than twenty-four hours, unless Sunday or some other Statutory Holiday or Holidays shall intervene, and in case of such intervention, every sitting or adjournment shall be within twenty.four hours from the time of appointing or fixing the same, exclusive of such Sunday or other Holiday or Holidays as aforesaid.

CXIV. And be it enacted, That the said Commissioner shall not, except as before accident, &c., report excepted, omit such daily sittings except in cases of sudden accident or necessity, or in case of illness; and that such cases of sudden accident or necessity shall forthwith be specially reported to the said Select Committee by such Commissioner, and be verified upon the Oath of the said Commissioner, and also in case of sickness by the

Committee, and

verified by affidavit.

Oath

Oath of the Physician, if any there be attending such Commissioner, or if there be no Physician in attendance, then by the Oath of some third party who shall be cognizant of the fact, which Oaths shall be made before one of Her Majesty's Justices of the Peace; and that any Commissioner who shall so omit such daily sittings without Penalty for omitting such lawful excuse, shall for every day on which he shall so absent himself, forfeit to sit without lawful and pay the sum of Twenty-five Pounds.

excuse.

by the Committee on such report.

CXV. And be it enacted, That upon every such Special Report from such Proceedings to be had Commissioner, the said Select Committee shall be ordered to meet as is provided upon by the Com the transmission of his final Report and Return, and the said Select Committee shall thereupon proceed to hear the parties interested or concerned in such Election Petition, or such of them as shall choose to attend for that purpose, their Counsel or Agent, upon such Special Report, and if it appear to such Select Committee upon the facts laid before them upon Affidavit, either in such Special Report, or by the parties or any of them, either that the Commissioner is dead, or that he will be unable to complete the duties imposed upon him by the said Commission within a reasonable time for that purpose, such Select Committee shall and may proceed to supersede the same, and to appoint another Commissioner thereupon as hereinbefore provided for that purpose: Provided always nevertheless, that notwithstanding Proviso. any thing herein contained to the contrary, in the event of the death of any such Commissioner, the Clerk employed by him in keeping the Minutes of his proceedings under the same, shall and may, either by the consent of all the parties interested or concerned in such Election Petition, their Counsel or Agent, or by direction of such Select Committee, make a Report and Return of all the proceedings had and taken by such Commissioner, which Report and Return shall in such case be equally available for all the purposes of this Act as if made by such Commissioner himself.

Commissioner to be excused in case of

sickness, &c.

CXVI. And be it enacted, That if any such Commissioner shall be prevented from attending at the day and place appointed as aforesaid by any sudden accident, necessity or illness, to be verified upon Oath in manner herein directed, he shall not be liable to the said penalty of Twenty-five Pounds; any thing herein contained to the contrary notwithstanding. CXVII. And be it enacted, That it shall and may be lawful for the said Commissioner Commissioner may from time to time to adjourn to any place within the County or Riding, City, Town, adjourn to other Borough or place in which the Election was held different from that in which such Commissioner shall in the first place have opened his Court or commenced his proceedings under such Warrant, in all cases where it shall appear to him expedient or necessary so to do.

places.

Power of

Commissioner to send

for persons, papers,

Other powers.

CXVIII. And be it enacted, That the said Commissioner shall have power at all times by Warrant under his hand and seal, to send for all persons, papers and records, and shall examine all witnesses who shall come before him, upon Oath or Affirmation, as the case may require, and shall examine all matters referred to him, and shall in all respects have the same powers and authorities for examining the said matters so referred to him as Select Committees of the Commons House of Legislative Assembly for the trial of Election Petitions have for examining the matters and things referred to such Select Committees, and the said Commissioner shall proceed in examining all and every witness or witnesses who shall come before him, and in scrutinizing the rights of any voter or voters, and in all matters and things whatsoever referred to him in the same course and manner, and according to the same Rules, as Select Committees of the Commons House of Legislative Assembly for the trial of Election Petitions ought and are empowered to proceed in like cases, and the Clerk appointed by the said Commissioner His Clerk to make shall from time to time make or cause to be made true copies of the Minutes of all the copies of evidence, minutes, &c. proceedings before the said Commissioner, and of all such evidence as shall be given or produced before him, and shall give one such copy to each of the parties interested, or his or their agent, or to such of them as shall demand the same, on being paid, for each folio of the said copy consisting of one hundred words, the sum of Six Pence : and within Fee.

ten

ten days after the evidence before the said Commissioner shall be closed, touching the Return to be made by matters and things referred to him, the said Commissioner shall cause copy of the Minutes

Commissioner to the

Speaker.

No Barrister or
Counsel allowed to
plead, &c., before
Commissioner.

Evidence tendered

may be received by

him conditionally, if he doubts whether it ought to be taken.

Committee to dertermine as to revelancy of such evidence.

of all his proceedings to be made, and shall examine the same with the said Minutes, and shall sign and seal the said copy, and shall transmit the same by his Clerk, through the Post Office, in the manner hereinafter prescribed for the transmission to the proper Court of Recognizances taken and estreated or otherwise proceeded upon under this Act, to the Speaker of the Commons House of Legislative Assembly of this Province, who shall accordingly communicate the same to the said House, and upon the transmission of the said copy, the said Commissioner shall adjourn in order to receive such further orders from the Select Committee upon the Petition in question, as such Committee may from time to time think requisite and necessary.

CXIX. And be it enacted, That the said Commissioner shall not permit or suffer any Barrister or Counsel to plead before him, or to examine or cross-examine any of the witnesses, but that the said Commissioner shall himself examine and cross-examine all the witnesses that shall be produced before him.

CXX. And be it enacted, That in case at any time in the course of the said before Commissioner, proceedings before the said Commissioner, any of the said parties shall tender or offer to produce to the said Commissioner any witness or evidence to, of or concerning any matter or thing whatsoever in issue before the said Commissioner, which witness or evidence the said Commissioner shall be of opinion ought not to be examined, heard or received, the said Commissioner shall state in writing the reasons and grounds upon which he has rejected the said evidence, and enter the same upon the Minutes of his proceedings, and it shall and may be lawful to and for the party tendering or offering to produce such witness or evidence, to require of the said Commissioner that the said witness or evidence shall be examined, heard and received by and before him de bene esse, and the testimony of such witness or the purport of such evidence shall accordingly be taken down in writing by the Clerk to the said Commissioner, separately and apart from all other evidence before the said Commissioner, and a copy thereof, with a statement of the purpose to or for which the said witness or evidence was produced, and by whom the same was produced, shall be signed and sealed by the said Commissioner in the nature of a Bill of exceptions to evidence, and the same shall be transmitted by the said Commissioner, together with all the other proceedings before him in manner herein mentioned; and if the Select Committee for the trial of such Election Petition shall be of opinion that the tendering and offering of such witness or evidence was frivolous or vexatious, or that the testimony of such witness or the purport of such evidence was impertinent or irrelevant to the matter at issue before the said Commissioners, the said Committee shall report such their opinion to the House, together with their opinion on the other matters relating to the said Petition, and the party who shall before the said Commissioner have opposed the examining, hearing or receiving of such witness or evidence shall be entitled to receive from the person or persons who shall have produced such witness or evidence, the full costs and expenses which such party or parties shall have incurred in opposing the same, or by reason of the same being received in manner aforesaid, which costs and expenses shall be ascertained and recovered in the same manner as by this Act is or hereafter may be provided by law for the recovery of costs and expenses in case of frivolous or vexatious Petitions, or frivolous or vexatious opposition to such Petitions. CXXI. And be it enacted, That within two days after the copy of the said proceedings before the said Commissioner shall be received by the Speaker of the Commons House of Legislative Assembly, the said Speaker shall issue a Warrant under his hand and seal, directing the Select Committee upon the Petition in question to re-assemble and to meet again on some day within the space of fourteen days from the date of such Warrant, provided Parliament shall be then sitting, and in case Parliament shall not be then sitting to meet on some day within one month after the commencement of the next Session of Parliament; and that the said Select Committee shall accordingly re-assemble and meet again, and shall take the proceedings of the said Commissioner into consideration,

As to costs, if the evidence be rejected.

When the return of the Commissioner is received, Speaker to direct the Committee to re-assemble.

Their proceedings when so re-assembled,