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an oath of residence or abode is required.(a) The form of this last oath may be qualified, by adding another place of abode to the one which entitles the elector to vote. As where Harwich being the borough for which the Election was beld, the voter tendered his oath to this effect, “ place “ of my abode at Durham, and also in West-street in the borough of Harwich.” (6)
In London, (C) Norwich (d) and Coventry, ( particular oaths are required from the freemen.
Although the regulations prescribed by the statutes for the manner of conducting the Election, ought to be complied with, yet a deviation from such as are merely directory, will not avoid the Election, though it may subject the returning officer to censure from the House. Thus where the mayor refused to swear the poll clerks according to the 25 G. 3, c. 84, s. 7, and on the third day adjourned the poll after it had been opened one hour, and held a court for the admission of freemen, who polled the next day; though these acts were signified by the Committee to be illegal, yet they did not avoid the Election, the statute being considered directory.($)
During the course of the Election, the returning officer has other duties to perform; he is to hear arguments upon disputed votes, and decide upon their admission or rejection; and the punishment of the House has generally followed a partial exercise of this duty. Such as the wilful and corrupt admission or rejection of votes in favour of either candidate, (8) denying the opposite party the right of examination, () refusing a reference to the assessment for the land tax to try the validity of a disputed vote; (8) opening a poll without any demand, to give time for another candidate to appear ;(h) dispersing garbled copies of a statute relating to the Election ;(i) and his conduct not only during the Election, but immediately preceding, if relating to it, will be enquired into by the House. (k)
R 25 G. 3, c. 84, s. 5. 6) 1 Peck, 390.
© 11 G. 1, c. 18. (d) 3 G. 2, c. 8.
21 G. 3, c. 54, s. 7.
() Middlesex. 2 Peck, 28.
(i) Sudbury, 2 Doug. 148, 172. See 1bid. 177.
(6) Great Grimsby, 1 Peck, 74.
There are certain general rules which should govern his decisions upon the reception of votes. He should receive or reject them according to the last determination of the House upon the right of Election; (a) and where there is no last determination according to the usage of the place; (b) and where there is no custom or prescription, according to common right, (b) which is to the extension of the franchise ; nor can the agreement of candidates alter the law, or justify the officer in a contrary decision. (6)
Where he has doubts as to the rights of single voters, or of a particular class; or an objection is made, which if argued, would greatly interfere with the proceedings, he may reserve the consideration until a future time during the poll, or till a reasonable time after its close, (“) marking them upon the poll as objected to, (d)
It was once resolved, that if the voters were equal, the Electors should“ continue together, or meet by adjournment till they can agree to an Election by plurality of voices ;" for the returning officer has no casting voice, unless by charter or custom. (C) But an equality of voices makes a void Election, and upon such an occasion there may be a double return. (5) A voter however who has polled at the beginning of the Election, may if the voters prove equal, for the purpose of making the Election good, withdraw his vote, and give it to the other candidate, that one may have a majority. (8)
When all the electors present have polled, and rea- Notice of sonable time has been allo ved for others to come in, the poll.
closing the returning officer may close the poll, making three proclamations to that effect at intervals. What is a reasonable time must depend upon the circumstances of the Election, upon the number of electors who have already polled, compared with the whole number possessing the right, upon the length of time the poll has lasted, upon the distance of any number of electors who have not voted, &c. But it is generally closed by consent. (h)
78 W. 3, c.7. ? G. 2, c. 24, 8.4.2 Fras. 144. See 28 G.3, c. 52, s. 31.
(6) Glan. 107-8, 142. Sed. vid. Brady, 127, 164.
N. B. See however Mr. Serjeant Heywood's advice on this subject, ante p. 72.
(d) Bedford's, 1 Lud. 350. Carmarthen, 1 Peck, 287. Middlesex, 2 Peck. 338. See ante, p. 72.
( Winchelsea, Glanv. 21. Mitchel 1 Lud. 77.
(1)1 Hey. 601. 8 Jour. 13. 10 Jour, 132.
(5) Glann. 22.
(1) See 1 Lud. 351. 1 Hey, 595. Simeon, 163.
If the Election continues till the last day, it must be closed at or before three o'clock; and when once closed, at whatever period of the Election, it cannot be reopened. (a)
Any person is entitled to a copy of the poll upon pay. ment of a reasonable charge for writing it. (6)
On the same day, or the day after, the returning officer must fairly and publicly declare the names of those who have been chosen, and forthwith make a return, unless a scrutiny is demanded by a candidate, or any two electors, with which he “ deems it necessary” to comply. (©) These words in the act give him a discretionary power, but which he must exercise discreetly, that is to say, according to the justice of the demand. In the Sudbury case, which was before the statute, the Committee, resolving that the mayor
had a right to grant a scrutiny, resolved also that “ he ought not to have refused it.” (d)
If a scrutiny be granted, the return must nevertheless be made as to a county Election, on or before the day on which the writ is returnable, and for a borough Election the precept must be returned to the sheriff, six days before the return of the writ; (e) and when the Election takes place, to supply a vacancy during the existence of Parliament, within thirty days after the close of the poll. (C)
Evidence may be received upon oath during a scrutiny, touching the rights of disputed voters, from all persons consenting to take the oath. (f) And the votes must be decided upon alternately.(5)
Of the Relurn to the Writ.
The return to the writ is by indentures between the sheriff and electors. The return to the precept by indentures between the returning officer and electors on the one part, and the sheriff on the other; it must be remitted with the precept to the sheriff, who remits it, as well as his own return with the writ appended, to the clerk of the crown in Chancery.(h)
© Arundel, Glanv. 71.
( 25 G. 3, c. 84, s. 1.
As the precept should be directed and delivered to the Return. legal returning officer of the borough, so he is the proper person to make the return to the sheriff.
If a return to the precept is made by any person except the returning officer of the borough, to whom it is directed, the sheriff is bound not to execute the indentures. Where an under sheriff executed two returns, one made by a person not named in the precept, the other by the proper officer, and returned them both, he was committed to the custody of the sergeant at arms.(a)
The course of proceeding in the borough of Milborne Port is, however, an exception to this rule ; for there the precept is directed to the bailiff, and the return made by the sub-bailiffs, or one of them. And, it seems, that where it is doubtful to what officer of the borough the duty of making the return belongs, a return made by others, together with the proper officer, will be valid.(0)
A return made by tbe proper officer, though defective in form, will be sustained. And a return by an officer de facto, though he may not have complied with all the legal forms necessary to sustain his election to the office upon a quo warranto, is, nevertheless, a good return.(d)
Where the original indenture has been stolen, the return of the counterpart has been holden sufficient.)
That sheriffs were frequently both negligent and corrupt, in making their returns, appears from the various penal statutes directed to the subject.(8) By the last of which, the returning officer wilfully misconducting himself in that respect, is liable to be sued in double damages by the party grieved.(5)
Though a double return, if wilful, false, and malicious, Double is prohibited,(h) yet there are many cases where double re. turns are justifiable, and necessary. As where the right of Election is uncertain, and the officer will not take upon himself to decide it, or an objection is raised against a class
Liskeard, 2 Peck, 327. (6) Taunton, 1 Peck, 406. (5) Dover, 1 April, 1679. Orme, 103.
(d) Doug. Rep. 568. See the cases in 2 Hey. 62-3.
Liskeard, Nov. 1740. Orme, 104. ( 5 Ric. 2. st. 2, c. 24. 11 Heu. 4, c. 1.
6 Hen. 6, c. 4. 8 Hen.6, c.7. 23 Hen. 6, c. 14, 10, 11 W.3, c. 7,
25 G, 3, c. 84. ss, 14, 15,
(8) 25 G. 3, c. 84. ss. 14. 15. See also Fox v. Corbett, 1 Hey. 655, which was an action against the high bailiff of Westminster, for wilfully and un. lawfully granting a scrutiny.
() 7 8 W. 3, c. 7, s. 3.
of voters who stand in particular circumstances, or the eligibility of the candidate, with the majority of votes, is objected to ;(*) or where it is disputed to which of two officers the duty of making the return appertains ;(6) or which of two persons is legally placed in the office ;(C) or there is an apparent equality of voices.(d) So where a scrutiny was begun, but not finished, a double return was made, and the
whole merits of the Election gone into.(e) Special
Circumstances may occur to make a special return necessary, as a riotous obstruction to the execution of the writ or precept.(I) But the necessity for such special return must be very apparent to justify the officer.(8)
It may be a material question before the Committee, whether the return be double or special, for on hearing a petition against a double return, the candidate first named, or whose return is immediately appended to the writ, begins; in the other case the first petitioner. Thus, where A and B were stated to be candidates, having an equal number of votes, but the return did not say that either was duly elected, this was holden a special return, and that B
the first petitioner should begin.(h) Amending a If it becomes necessary to alter or amend a return,
the clerk of the crown is ordered to attend with it in the House, and there amend it, by erasing the name of whomsoever the House have determined to bave been not duly elected, and inserting the proper name or names. If there be two returns, and one is declared void, he takes that off the file, leaving the other, and if that other contain the name or names of persons declared not duly elected, it is amended in the same manner.
The same return may undergo two amendments, when both the legality of the return, and merits of the Election are disputed, and separately decided upon.(i) Originally the mode was otherwise, till it was resolved, (k) that after a return into the crown office, “ the same shall not be “ altered by the sheriff, or the clerk of the crown, or any but is this House.”
1 Peck, 17 6) Okehampton, 1 Fras. 69. © Milborne Port, 1 Doug. 97 (d) 1 Lud. 75. 1 Peck, 1. 2 Peck, 371.
Oxfordshire, Dec. 1754. 2 Peck,
(1) 2 Peck, 383.