committed he shall dismiss the summons with or without costs as he may direct; and any costs that are awarded shall be the same as are awarded by the practice of the court on similar applications. C.O., c. 3, s. 92. 93. The ballot boxes, poll books, record books, statements of voters and all materials or forms used at or in relation to the polling place at which the vote appealed against was cast shall be subject to the order of the judge during the trial of the appeal. C.O., c. 3, s. 93. Costs Election material to be subject to order of judge 94. The costs to be allowed in the case of such inquiry shall Costs be according to tariff B in schedule 3 to this Ordinance and shall be taxed by the clerk and shall be chargeable in the first place to the sum placed in the hands of the sheriff of the judicial district: Provided that the judge may instead (if the appeal is sus- Proviso tained) order the costs or a part thereof to be paid by the person whose vote is appealed against. C.O., c. 3, s. 94. 95. When the sum of $10 provided for in section 73 hereof Further deposit has been applied in costs the judge may from time to time require the deposit by the appellant of a further sum which shall be fixed by him according to the probable expenses of the case; and if such deposit is not paid before continuing the proceedings the appeal may be dismissed with or without costs as the judge may direct. (2) If at the conclusion of the appeal a part of the sum or sums deposited remains in the sheriff's hands after all orders against it have been paid it shall be returned to the person depositing the same. C.O., c. 3, s. 95. Any part of deposit appeal to be returned remaining after appeal 96. If at any time the appellant notifies the judge over his Withdrawal or signature of his desire to withdraw an appeal the proceedings in that appeal shall forthwith cease; and the balance of the money deposited by the appellant after payment of the costs of Costs the court up to that time shall be returned to him; but if there is not sufficient balance remaining to pay such costs the judge may in his discretion order the appellant to pay the deficiency to such party as he may by his order direct. C.O., c. 3, s. 96. COUNT OF APPEALED VOTES BY JUDGE. hearing appeals 97. After the judge has concluded his inquiry as to all the Duty of judge after appeals regarding the validity of votes cast which have been brought before him and rendered his decision, unless a recount has been demanded he shall— Remove appealed ballots Destroy unlawful ballots Open lawful ballots Count of vote Counted ballots Continuation Record of vote Count of ballots Previous casting vote, if any, not to be counted in first count Casting vote to be given by returning officer if required Declaration of poll 1. Open a ballot box containing ballots which have been the subject of appeal before him and remove such ballots only; 2. Destroy, without opening the envelopes, the ballots which he has decided were unlawfully cast; 3. Open the envelopes containing the ballots which he has decided were lawfully cast and taking out the ballots place them together in a vessel without examining them so that they may be mixed together and not distinguishable one from the other; 4. Take such ballots out of such vessel; open them and count the ballots which have been cast for each candidate, rejecting only such as do not make apparent the intent of the voter, which ballots so rejected he shall destroy; 5. Return the ballots which he has counted to the ballot box and securely lock and seal the same; 6. Proceed similarly with each of the ballot boxes of the electoral district containing ballots which have been the subject of appeal; 7. Record the number of ballots the objection to which he has sustained, the number cast for each candidate, and the number rejected as not having made apparent the intent of the voter; 8. Add to the total vote received by each candidate according to the return made by the returning officer the number of appealed ballots which he has decided have been cast for each candidate: Provided that if a tie has occurred at the count by the returning officer and the returning officer has given a casting vote, such vote shall not be counted unless a tie occurs again in the count by the judge, in which case the vote of the returning officer shall be counted for the candidate for whom it was cast: Provided further that if a tie has not occurred at the count by the returning officer and does occur at the count by the judge the returning officer shall then forthwith give a casting vote upon being requested to do so by the clerk at the instance of the judge; 9. Declare elected the candidate who has received a majority of all the ballots counted by himself and by the returning officer and 10. Certify in writing to the Clerk of the Executive Council the name of the candidate declared elected by him upon his count of appealed ballots as herein provided; and upon such certificate being given (unless a recount is demanded) such declaration should be final and conclusive to all intents and purposes subject to the provisions of The Controverted Elections Ordinance; C.O., c. 3, s. 97. orders of judge 98. Any order made by a judge acting on appeal shall be Enforcement of carried out and may be enforced as if it were an order of the Supreme Court in the judicial district within which the judge sits upon such appeal. C.O., c. 3, s. 98. RECOUNT BY JUDGE. 99. Upon any candidate or his agent placing in the hands Demand of recount of the sheriff of the judicial district mentioned in section 89 of this Ordinance the sum of $50 with a demand in writing for a recount of the ballots cast in one or more polling divisions, any judge of the supreme court usually exercising jurisdiction in the judicial district where the election was held shall (after having disposed of any appeal regarding the validity of ballots that may have come before him) on application made to him as hereinafter mentioned hold a recount. time of recount (2) No application for a recount shall be entertained unless Deposit for and such application is accompanied by $50 as provided in this section and is made within thirty days after the declaration of election by the returning officer if no appeals have been made from the decision of the court of revision or returning officer to the judge and if any such appeals have been made then within thirty days after the judge has given his decision regarding such appeals. deposit (3) The money deposited with a demand for a recount shall Disposition of be disposed of by order of the judge in defraying the necessary expenses of holding the recount; and the remainder if any shall be returned to the person who deposited it; (4) The ballot boxes, poll books, books of record and other materials or forms used at the polling place respecting which the demand for a recount has been made shall be subject to the order of the judge during such recount. C.O., c. 3, s. 99. Ballot boxes, etc., to be subject to order of judge recount 100. Upon the party demanding a recount or any person on Time and place of his behalf satisfying the judge by affidavit verifying the demand that a demand for a recount has been served on the sheriff as hereinbefore provided and that the sum of $50 has been deposited with such sheriff as provided in the last section Procedure thereat Proviso If recount not properly demanded or security omitted Count of ballots Examination and count of ballots Illegal ballots Particulars to be recorded Disposition of ballots and boxes after recount Other ballot boxes the judge shall sign an appointment fixing a time and place within the said judicial district at which each recount shall be held and shall in such appointment direct upon whom and in what manner such appointment shall be served. C.O., c. 3, s. 100. 101. The judge shall attend at the time and place so appointed and upon being satisfied by affidavit that his appointment has been duly served upon the persons directed by him to be served therewith he shall proceed with such recount: Provided however that it may be open to any candidate or agent to show by evidence either viva voce or upon affidavit as the judge may direct that the demand for a recount was not made or the sum of money was not deposited with the sheriff as provided by section 99 hereof or was not deposited within the time thereby prescribed; and upon the judge being satisfied that such demand was not so made or that such money was not so deposited he shall so find; and shall file with the said sheriff a written finding to that effect signed by him; and thereupon the said recount shall be abandoned. C.O., c. 3, s. 101. 102. In case the judge proceeds with the recount he shall (in the presence of such of the candidates or their agents appointed as such in writing as may be present) open one of the ballot boxes regarding which a recount has been demanded and shall count the number of ballots contained therein; and shall note the number in a book and shall place the ballots in an open vessel. C.O., c. 3, s. 102. 103. The judge shall then proceed to examine and count the ballots for the several candidates as it shall appear to him to have been the intent of the several voters marking the ballots, rejecting only those by which the voter has not made his intent apparent [by the colour of the mark or marks on the inside or front of the ballot paper] or which have not been properly initialled or stamped [on the outside or back.] C.O., c. 3, s. 103; 1899, c. 3, s. 25. 104. The judge shall then return the ballots to the ballot box from which they were taken; and shall securely lock and seal the same; and shall cause it to be returned to the custody of the sheriff of the judicial district in which the electoral district is situated. C.O., c. 3, s. 104; 1899, c. 3, s. 26. 105. He shall then proceed similarly with each of the other ballot boxes regarding which a recount has been demanded. 106, 107, 108, 109, 110, 111, (Repealed.) 1899 c. 3, s. 27. etc. 112. The costs of the recount beyond the amount of the Costs of recount, deposit required by section 99 of this Ordinance shall be charged to the general expenses of the election according to Election fees such regulation as to fees and otherwise as may be prescribed from time to time by the Lieutenant Governor in Council. C.O., c. 3, s. 112; 1899, c. 3, s. 28. 113. (Repealed.) 1899, c. 3, s. 27. Statement by 114. The judge shall prepare a statement showing- (b) The number of ballots actually counted by him; (c) The number rejected; and (d) The number counted for each candidate; with a declaration of the election of the candidate receiving a majority of the votes cast which candidate shall forthwith be held to be duly elected; and such judge shall thereupon certify His certificate in writing to the Clerk of the Executive Council and to the sheriff mentioned in section 89 hereof the name of the candidate declared elected by him on such recount; and upon such certificate being given such declaration shall be final and conclusive to all intents and purposes subject to the provisions of The Controverted Eections Ordinance. (2) In case a candidate declared elected by the judge is other than the one declared elected by the returning officer no penalty or damages shall be incurred by the person at first declared elected by reason of any act done by him as duly elected representative of the electoral district. (3) The casting vote of the returning officer (if he has given In case of a tie one) shall not be counted by the judge in such recount unless there shall be a tie on the said recount in which case the casting vote of the returning officer shall be counted as having been cast for the candidate for whom it was cast the first time he cast it. required (4) If the returning officer has not given a casting vote Casting vote it and the recount of the judge results in a tie, the returning officer shall forthwith on the written request of the judge give a casting vote. C.O., c. 3, s. 114. MISCELLANEOUS. 115. Whenever the judge usually exercising jurisdiction in the judicial district in which the election is held is disquali Where judge is unable to ac disqualified or |