that is, the day of election "to the said chairman, be
entitled to receive a voting paper from him, and to fill
up the same in his presence, and then and there to
deliver the same to him." That section clearly shews
that before the election, even so late as the day of
election, if there has been an omission to fill up the
voting paper, the voter may insist on its being done,
and doing it himself, if necessary, in the presence of the
chairman. The object of sect. 27 is that, in case of
any dispute arising as to the number of votes which
the chairman has allotted to any voter, it may be
inquired into and finally ascertained: when it is said,
"he shall cast up such of the votes as he shall find to
be valid," it is not meant that he shall then and there
inquire into and settle how many votes each voter is to
have, but it refers to that having been already not
finally but provisionally settled and, subject to inquiry,
ascertained. Having ascertained the number of valid
votes duly given for each candidate, he is to cause a
list to be printed and published containing the names
of the candidates, together with the number of votes
given for each; but that list does not state how many
votes were allowed to each voter, and does not afford
the least opportunity of ascertaining whether the chair-
man has taken pains to ascertain that each elector, being
owner or occupier, has been allowed the right number
of votes. These therefore were not voting papers
the provisions of the Act.

within

As to the other point, I agree with my brothers that we ought not to assist this relator. With knowledge of the irregularity of the course pursued by the chairman he concurred in it; at this and other

elections he used a voting paper which he knew

1866.

V.

LOFTHOUSE.

to be irregular, and not according to the provisions The QUEEN of the Act; therefore he comes exactly within the description of a relator whose application, according to Lord Kenyon in Rex v. Clarke (a), ought not to be attended to. That case and others to the same effect are cited in Corner's Crown Practice, p. 181. This is a matter entirely for our discretion, and I agree that on this ground the rule ought to be discharged with

costs.

Rule discharged, with costs.

(a) 1 East 38. 46.

SKENE against DAVIES.

1. The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. 8. 93., enacts, If any person shall bring an action of ejectment after a prior action for the same premises unsuccessfully brought" by him, the Court or a Judge may, if they or he think fit, on the application of the defendant at any time after appearance, order that the plaintiff shall give to the defendant security for costs, with stay of proceedings, whether the prior action has been " disposed of by discontinuance, or by nonsuit, or by judgment for the defendant." Held

(1.) That this section applies to all cases where the first action
has been "unsuccessfully brought," and is not restricted to
those mentioned at the end of it.
(2.) Where an order for security for costs has been made on a
ground which no longer exists the Court will not release the
plaintiff from it if the facts are such as bring the case within
the operation of the section.

Tuesday,
May 8th.

Ejectment. Plaintiff not within jurisdiction. Security for

costs. Motion to set

aside.

Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. 8.93.

Prior action

for same pre

mises unsuc

Cessfully

2. In 1857, the plaintiff, as heir, brought an action of ejectment against the defendant for certain premises. In 1858, it was agreed that the action should be discontinued, and a bill in Chancery brought instead. No formal discontinuance was entered, but the suit in Chan- brought. cery was instituted. This was discontinued and a fresh suit commenced, the proceedings in which were stayed until security for costs should be given. In 1863, the plaintiff brought another action of ejectment for the same premises; in 1864, in consequence of the plaintiff residing out of the jurisdiction of the Court, the defendant obtained a Judge's order for security for costs, with a stay of proceedings. In 1866, the plaintiff applied to set aside this order, upon an affidavit that he had returned to England and was engaged as private tutor in a family, and had 21 2

1866.

SKENE

V.

DAVIES.

determined not to go again out of the jurisdiction of the Court until the cause was tried and disposed of.

(1.) Quare, whether the affidavit was sufficient?

(2.) Held, that if an application had been made for an order under stat. 17 & 18 Vict. c. 125. s. 93., on the ground that the prior action was unsuccessfully brought, the Court would have made it; and therefore

(3.) On this application the Court, in the exercise of its discretion, refused to set aside the order.

JOHN COOK (April 27th) obtained a rule calling

upon the defendant to shew cause why an order of Crompton J., dated the 15th April, 1864, by which it was ordered that the plaintiff should give security for the defendant's costs in the cause to the satisfaction of the Master, and that in the meantime all further proceedings should be stayed, should not be rescinded. He cited Place v. Campbell (a).

The affidavit of William Smith, who formerly acted as attorney for the plaintiff and also for one C. Higgins, stated that in 1857 he brought on their behalf an action of ejectment to recover possession of certain real estate in Carmarthenshire, which the plaintiff claimed as heir at law, and which was the subject of the present action of ejectment: that issue was joined in that action, but it was not brought to trial, inasmuch as, the matters in dispute involving questions of law rather than of fact, the attorney proposed to James Crowdy, the attorney for the defendant, that the parties should agree to a special case being stated for the opinion of the Court, and after discussion it was arranged that they each should name a counsel practising in the Courts of equity who should meet in consultation and determine whether the case could be submitted for decision to a Judge of the Equity Courts: that a consultation of (a) 6 D. & L. 113.

counsel was had accordingly, and they advised that the action of ejectment should be discontinued upon a suit in Chancery being instituted on behalf of the plaintiff alone for the same object and in place of the action, and it was thereupon agreed that the action should be discontinued, although no formal rule to discontinue was to be or in fact was drawn up, and a bill in Chancery was filed on behalf of the plaintiff with the above objects that the suit was proceeded with until the plaintiff employed other solicitors who, under the advice of counsel, dismissed the bill and filed another.

:

The affidavit of the plaintiff stated that issue had been joined in the present action, and by consent the venue changed to Middlesex by a Judge's order in November, 1863, and that before the action could be brought to trial the order in question was obtained in consequence of his having gone to reside at Kingstown, in the county of Dublin, in Ireland, out of the jurisdiction of this Court: that since the date of the order he had given up his abode or visit and occupation at Kingstown, and left Ireland in September, 1865, for England, and had since that period been residing at H. House, &c., in the county of Gloucester, with the exception of a visit of three weeks to his mother at Boulogne, in France: that he was engaged as a private tutor in the said house in Gloucestershire, which belonged to the Rev. C. F. W., and where he intended to continue to reside during his engagement and pending the action : that he had no intention of returning to and residing in Ireland, nor did he intend to reside out of the jurisdiction of the Court pending the action, and that he had determined not to go again out of the jurisdiction of the Court until the cause was tried and disposed of.

1866.

SKENE

V.

DAVIES.

1866.

SKENE

V.

DAVIES.

The affidavit of James Crowdy, attorney for the defendant, stated that the defendant in the action was tenant under C. H. Wilkinson and W. Murrell who claimed the estate in question under certain wills: that another action of ejectment had been brought by the plaintiff, claiming as heir at law, against another tenant of C. W. Wilkinson and W. Murrell, to recover real estate in Yorkshire: that the agreement between William Smith and himself was, that if a bill in Chancery was filed he would not take the objection that the Court of equity had no jurisdiction in the matter on the ground of its being a question of mere legal title: that he did not consent to the first action of ejectment being suspended and not discontinued in the ordinary way on payment of costs: that he entered an appearance to the bill in Chancery for certain of the defendants thereto that in April, 1858, an order was made appointing other solicitors therein for the plaintiff, and in June they obtained an order to dismiss the bill with costs to be paid by the plaintiff to the defendants, which costs had never been paid: that in October the then solicitors for the plaintiff filed another bill, differing in form from the first bill, but with the same object, at the suit of the plaintiff against the same defendants and C. Higgins: that he entered an appearance thereto for the defendants other than C. Higgins; and in November an order was made by the Master of the Rolls that the plaintiff should give to those defendants security for their costs of the suit: that the answer of those defendants was prepared but not filed, in consequence of the proceedings in the suit being stayed through the plaintiff's neglect to give security for costs: that C.