« PreviousContinue »
Lists contain- was offered to prove it a rent charge, wbicb was not allowed ing objections
under the objection of “ no freehold.”(a) Objection
freehold,” no freehold as described on the poll not duly assessed ;" evidence that the voter had no freehold in the occupation of the tenant named on the poll was rejected.(6) Objection not assessed,” the voter voted for a share in Fulham Bridge, the property was rated in the name of the proprietors of Fulham Bridge ; to prove the voter a proprietor, a conveyance was produced to one of the same name, the Committee refused to receive evidence that this was not the voter; no specific objection had been made that the voter had no freehold, or no such freehold as described on the poll.(C)
There were two men of the same name and place who polled for the sitting member, one was objected to as not assessed; it was understood to be the sense of the Committee, that he should be identified by the petitioner before the objection could be entered upon.(d) So in the Glostershire case, where there were three of the same name and place, the Committee resolved, “ that as several John Bal
lingers appear on the poll, the evidence shall be confined 6 to John Ballinger, who polled on the first day."(9) The votes of persons objected to by wrong names were not allowed to be questioned.(f)
Evidence of no freebold will support an objection of no freehold of 40s.(8) So evidence that the freehold is out of the county, will support the objections of“ no freehold,” no freehold as described on the poll, no freehold in the division for which he voted.(h)
Immaterial statements in the list, though erroneous, will not vitiate the objection, nor shut out evidence of the material parts.(i) The voter's residence being mis-stated, it was contended by the sitting member, that although the statement of residence was unnecessary, yet being stated incorrectly, the objection could not be gone into, but the Committee decided otherwise, and proceeded to examine the vote.(k)
(1) Middx. 2 Peck, 49. 50.
In the discussion of disputed votes, a Committee will sometimes hear the case of a single voter re-argued.(a)
Parties before the Committee.
The candidates at the Election are not in all cases the Parties, only parties before the Committee; when the petition contains matter of complaint against a returning officer, which may subject him to the censure of the House, he is allowed one counsel to attend on his behalf; (b) and where the rights of electors not being parties to the petition are unexpectedly put in jeopardy in the course of the trial, they may be heard upon the subject in which their interests are concerned.
Thus where the candidates at the time of the poll were apparently agreed upon the right of Election, but in the Committee, when the petitioner's counsel had finished his opening, the sitting members declared their intention to dispute the right, and mutual statements were accordingly delivered and the right argued, the Committee resolved that the electors, no petition having been presented by any of them, might be heard by themselves or counsel. (C)
So where the sitting member withdrew from the trial, upon proof of his disqualification, the Committee resolved, that the voters in his interest, who were petitioners, might be heard touching any matters concerning them. (d)
Not more than two counsel on each side are heard before Counsel. the Committee, but an additional one may be in attendance to act in the absence of either of the others. However numerous the petitions may be, if they are in substance the same, the petitioners are heard but by two counsel. Where amongst other things the right was questioned by the petitioning candidate, the Committee, after allowing that liberty had been sometimes granted,
(*) Fowey, Corb. Dan. 145-6. (6) 1 Peek, 77, 146-504.
() Weymouth, Melcombe Regis, 2 Peck, 197.
(d) Coventry, 1 Peck, 96.
refused to hear the counsel for the electors, stating, that a year was allowed for an appeal principally, that the electors might have an opportunity of disputing the right if they chose. (a) And this rule applies to the sitting members, where their grounds of defence are the same. But where the interest of the different parties before the Committee rest upon different grounds and are clearly distin. guishable, each candidate and sitting member is allowed two counsel, and the electors are heard by theirs.
Thus where the right of Election was disputed, and petitions presented both from candidates and electors; as their interest were not directly the same, that of the candidates being confined to the particular return, that of the electors extending to the permanent right of Election, the counsel for the electors was heard when the case of the candidates was concluded. (6)
The like offer to hear the counsel for the electors was made in the Chippenham case.
(C) But where separate petitions were presented by different electors against the right of Election determined by a former Committee, as the object and interests of the different petitioners were the same, the Committee resolved, that counsel should be heard for one set of petitioners only. (d)
Order of Hearing.
The order of hearing the parties is commonly as follows. 1st. The petitioning candidates, as their petitions are classed in the House ; next the electors, if the right of Election is disputed ; and upon double returns, the candidate whose name is first in the return, or is immediately annexed to the writ.
But this mode is occasionally departed from, when the necessity of justice requires it; and the order of hearing the parties is arranged according to the convenience of the case.
In the Middlesex case, where, amongst other things, the conduct of the returning officer was complained of, after
the petitioner's case was concluded, and the counsel' for Counsel. the returning officer had opened his case, the Committee decided, that the case for the sitting member should be opened before the witnesses were called for the returning officer, (a)
Nor is the Select Committee bound in respect to the separation of the parties, by the form of proceeding previously adopted by the House upon the ballot.
Thus in the Herefordshire case (TM) there was no petition from any person claiming to be returned, but different electors presented separate petitions, each petition being against a different sitting member; the House had refused to distinguish them upon the ballot, yet when the case came before the Select Committee, the petitions appearing wholly unconnected, the petitioners were heard separately, and the sitting members ordered to reply, either jointly or separately as they chose.
Of certain matters of Evidence relating to Election Pe
1st. Of the poll.
4th. Of agency. The legal custody of the poll book is with the clerk of of the poll. the peace, but if it has not been deposited with him, the Committee will make an order upon any person who has the actual possession, to produce it. (*)
The poll is the best evidence of an Election, and what persons were candidates and voters, (d) and should be produced, or the Committee will refuse to proceed with a case; (e) but like all other written instruments, it must be authenticated before it is received in evidence,
In county Elections in England, the sheriff or returning officer is required, within twenty days after the Election, deliver over upon oath to the clerk of the peace all the poll books without any alteration, &c. (f)
Peck, 23. b) 1 Peck, 185.
(9) Herefords, 1 Peck, 208. don, 2 Peck, 270.
(d) Limerick, Corb. Dan. 92.
( Newcastle-under-Lyne, 1 Peck, Lon- 492.
(V) 10 Ann, c. 23, s. 5. K
of the poll. As it is be presumed, that public officers have per
formed what the law requires, unless something ap-
So the Yorkshire Committee, in 1735, received the poll in evidence under the following circumstances. Books called the original poll books of the last Election, were produced by the deputy clerk of the peace for the East riding of the county; they had been delivered over to him by the high sheriff of the said county in open court, at the quarter sessions of the peace for the said riding, about two months after the Election, as the original poll taken at the said Election, and had been kept by him the said deputy clerk ever since, among the records of the sessions of the peace for the said riding; these books, though not delivered over by the sheriff within the time, nor upon oath, as required by the 10th Ann, &c. were admitted in evidence. (6)
But where the clerk of the peace produced twelve paper books, delivered to him by the under sheriff as the pollbooks, which were taken at different places, some by the sheriff's agents, and others by agents for the candidates, but he could not distinguish which of them made the sheriff's poll, and none of the books being either sworn to or attested by the sheriff, the Committee did not think them sufficient to proceed upon.
So where the poll was produced by the clerk of the peace, who stated he had received it from the assessor to the returning officer, the Committee refused to receive it in evidence, as not properly authenticated. (d)
Herefords, 1 Peck, 208. 6) 22 Journ. 587. 2 Peck, 270. n.
* Bucks, 2 Jour. 80. 2 Peck, 271,n. (d) Dungarvou, 1 Roe, 711.