« PreviousContinue »
There is a similar provision for the delivery of the poll, to Of the poll. the clerk of the peace in all Irish Elections, for counties, (a) and for counties of cities, and counties of towns. (6)
Before this regulation for counties of cities and towns in Ireland was provided, the following points were decided upon the authentication of the poll. A person who was both town clerk, and clerk of the peace for the county and city of Limerick, attended before the Committee and stated, that the sheriffs were the returning officers, and that from one of them he received the poll a few days after the Election; that the poll book was sealed up in a parcel when be received it; and that it continued so sealed up in his possession ever since. It was objected, that this was not sufficient evidence to shew, that the poll proposed to be produced was the poll taken at the Election; and the objection was allowed. (C)
But where it appeared that the sheriff having signed the poll at the termination of the Election, immediately gave it back to the poll clerk, who kept it scarcely a day to make some minor alterations in some of the entries ; that the sheriff afterwards delivered it at the office of the clerk of the peace; and being present before the Committee, gave evidence that the poll then produced by the clerk of the peace was the same he signed and left at his office; the Committee received ii in evidence. (d)
The production of the original poll as a preliminary step to the determination of the merits, has been held necessary in the case of an Irish petition, although the commissioners had returned such of its contents as were sufficient for the trial of the cause. A Committee having issued a commission into Ireland to take evidence under the 42d G. 3, c. 106, met again after adjournment to try the merits of the Election upon the evidence returned under the commission ; it was contended by the sitting member, that the petitioner must produce the original poll book, but it being mentioned, that the petitioner had taken the precaution of bringing over the poll from Ireland, and had tendered it in evidence on the first day of the sitting of the Committee in the last session (when they
@) 35 G.3, c. 29, s. 16, Ireland. ::
4 G. 4, c. 55, s. 76.
(c) Limerick, Corb. Dan. 89.
Of the poll.
met to issue the commission) but no entry had been made on the minutes, and the Commissioners had omitted to return the poll books which had been sent back to Ireland, after its production, the Committee resolved, that the production of the poll was necessary, but that the omission not being imputable to the petitioner, it should not be permitted to destroy or suspend the proceedings.(a)
But an admission by one of the parties, that certain persons voted for him, supersedes the necessity of proving that fact (b) by the production of the poll.
When a poll has been taken at an Election for a city or borough, that also, when authenticated, is the best evidence of the Election, the candidates, and voters; and there are several decisions as to the proof required to authenticate as polls, certain papers which purport to be polls.
The under sheriff for the city of Bristol being called to produce the poll, stated, that there were four places as which the poll was taken; that he was present during the whole Election, and took the poll at one of the places himself; that the poll was taken at the other three places by his son, his partner, and his clerk; that the books he had to produce were those whieh were given to them to take the poll in ; that he collected and cast up all the polls every evening as under sheriff ; that he collected and kept the different poll books in his custody each night, and gave them out to the same persons, who were the sworn poll clerks every morning ; and that at the close of the poll, he collected the different books and declared the numbers. The Committee determined, that the poll books should be received in evidence. (C)
The person who was town clerk and under sheriff produced the poll book, and stated, he believed he had received it from the sworn poll clerk (whom he knew as poll clerk) soon after the Election; it remained unaltered ever since in his custody, which was the proper custody. The Committee resolved, that the poll book was not sufficiently proved. On the next day, however, the poll clerk ap
(9) Waterford, 1 Peck, 233-6. It such parts of his case as were unwas held, however, by subsequent connected with documents not before resolutions, that the production of the Committee. the poll was necessary, and the pe. (6) Ibid. 240. titioner was directed to proceed with (9) Bristol, Corb. Dan. 87-8.
peared, and proved the poll book to be in his hand. Of the poll. writing, the same he took at the poll, and that he delivered it at the close of the poll, either to the town clerk or assessor. Upon which the Committee received the book in(") evidence.
A paper purporting to be the copy of a former poll was found amongst family papers of a gentleman of fortune in the borough ; it was in the hand-writing of a man who was clerk to the gentleman's ancestor, the recorder, and upon it was a memorandum by the recorder, and with it a letter to him from one of the corporation, upon the Election; all the papers in the borough were proved to have been lost; and the Committee received the evidence. (b)
So they received the copy of a former poll found in the corporation chest, and indorsed by the town clerk. (4)
But copies of polls at two contested Elections, found amongst the papers of the member who sat in consequence of those Elections were not received. (d)
So a paper entitled, “ A true copy of the poll,” &c. to which the hand-writing was not proved, found in a family repository of deeds and papers, was rejected. (e) And in the Steyning case, several papers purporting to be polls taken at different Elections long past, found not in the corporation chest, nor amongst the papers of the person who appeared to have been the proper officer to take the polls, or his representatives, but of one who was steward of the borough after the period to which two of the polls related, were rejected.()
Although the polls are the best evidence of the matters Evidence to they contain, yet the cheque books have been admitted to poll. correct and amend the poll books, () and parol evidence was held admissible to correct both, where notice of the mistake was given to the sheriff at the Election, (h) But a different rule was laid down in the Middlesex case, and no evidence allowed to alter the poll; though where the name taken down by the poll clerk was similar in sound to the real description of the voter, the Committee held a
(*) Chester, Corb. Dap. 72.
Downton, 1 Lud. 276.
(S) 2 Fras. 310, &c.
(8) Gloster, 162, Bedfords, 1 Lud. 356.
(4) Bedford's, i Lud. 382. Vid. 376.
Evidence to correct the poll.
variance as the mistake of the clerk, rather than a misde scription of the voter, if the similarity justified them.(a)
It was resolved by the Glocestershire Committee, that the counsel should not adduce evidence to contradict the descriptions or entries in the poll books, but that evidence might be adduced to explain them. (6)
2. Of the Minutes of Committees.
It is a rule of law that a judgment is in all cases admissible as proof of the fact that such judgment took place, and of its legal consequences; but when adduced as proof of the matters on which it is founded, it is only admissible against such as were parties to the judgment, or those who stand in privity with them. (C)
The minutes of a former Committee were offered to prove, that there were such proceedings as the petition set forth, that the only evidence in those proceedings against A. B. was evidence of bribery and treating, that the Committee declared A. B. not duly elected, and that such declaration therefore was in fact a determination, that A. B. had been guilty of bribery and treating; the Committee received the evidence, (d) and their decision was according to law; for the proceedings were not tendered as evidence that A. B. had been guilty of bribery and treating, but merely that he had been declared so by a Committee.
But the minutes of a former Committee being tendered to prove, that the premises granted to certain disputed voters were the same, and the conveyances of the same nature, and made under the same circumstances as in a former case, in which former case the Committee had struck off the votes given in right of them, were rejected. (C)
Where a witness on a former petition has been shewn to be dead, his evidence has been read from the minutes taken upon that petition. (f)
2 Peck, 52. (6) Gloster, 139.
See Starkie, 187-8, 190.
(d) 2 Norwich, 3 Lud. 459, 474–7.
3. Of Private Documents.
Under the authority of the statute, 10 G. 3, c. 16, s. 18, " to send for papers and records,” the Committee will neither compel, nor allow the production of certain documents to impeach a voter's title, without the consent of those interested in them ; but evidence of the same facts which the document would have proved, may be given by secondary means.
Thus in the Middlesex case, (a) the Committee resolved, that it was irregular to serve orders on voters to produce their title deeds, and directed such as had been issued to be recalled. The same was holden in the Bedfordshire case, (6) So a voter is not bound to produce his appointment as parish clerk. (C) Nor a trustee a deed of trust, without the consent of the cestui que trust. (d) But where estates had been conveyed to trustees to sell for the payment of debts, and the purchase money being insufficient to cover the amount of the debts, the cestuique trust had refused to join in any conveyance to the purchaser, whereby the legal estate remained still in the trustees, the Committee compelled a person in possession of the deeds to produce them, one of the trustees being present and consenting, though against the desire of the cestuique trust. (*) The books of the Society of Lincoln's Inn were not received to impeach a voter's title to his freehold.(1) Nor the court rolls of a manor for the same purpose against the lord's consent; nor was the steward compelled to produce them, though he had the lord's consent, or to give evidence of their contents. (8) And where the lord of the manor forbade the steward to produce the court rolls, the prohibition was holden to extend to the bailiff's account books as documents in the hands of an inferior officer of the manor. (h)
But parol testimony, or writings with the consent of those interested in them, may supply the place of the
C) 2 Peck, 133.
Middx. 2 Peck, 133. (d) Ibid. 118.
© Coventry, 1 Peck, 948.