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Sec. 3.

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candidate at the time aforesaid, administer an oath
to the same effect.*

This question is merely to ascertain whether the
voter is the person whose name appears, however
incorrectly, as A.B. on the register. Thus, in R. v.
Thwaites (22 L. J. Q. B. 240), it was ruled that, if
persons are entitled to vote, and they have answered
and answered truly that they are the persons men-
tioned in the burgess roll, it matters not that they
have voted in wrong names, it is a case of mis-
nomer within s. 142 of Municipal Corporation Act;
and “Where a voter has been entered by mistake on
the register as W. B., his real name being T. B.,
and he votes as T. B., this is misnomer, not per-
sonation, and the vote is not vitiated if he is the
man who was intended to be described” (Oldham,
10. & H. 152).

The returning or presiding officer must not ask any other questions, as e. g. the requiring voters to spell their names, or the inquiring of them in what right they vote, &c. (Canterbury, K. & 0. 137 ; Bedford, P. & K. 140.)

And upon an affirmative answer being given, the voter shall be allowed to vote (even if already under arrest) by virtue of the following proviso of 6 Vic. c. 18, s. 86:

“Provided always, that nothing herein contained Voter to be " shall be construed or taken to authorize any return- 6 Vic. C. 18. “ing officer, or his deputy, to reject the vote of any

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allowed to vote.

* These provisions were extended to Ireland by 13 & 14 Vic. C. 69, ss. 88, 89, and to Scotland by 43 Vic. c. 18.

Sec. 3.


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person who shall answer in the affirmative the

questions authorized by this Act to be put to him at
66 the time of polling and shall take the oath or make
“ the affirmation authorized and required of him;
“ but the said returning officer, or his deputy, shall
“ cause the words “protested against for persona-
“ tion,' to be placed against the vote of the person

so charged with personation when entered in the

The returning officer, by refusing to admit the
vote, may subject himself to a criminal prosecution
for breach of public duty (Pryce v. Belcher, 4 C. B.
866), even if he acted without malice, for he is then
exercising ministerial and not judicial duties.
(Pickering v. James L. R. 8 C. P. 489). But where he
has to act in a judicial capacity (e. g. in deciding
upon the validity of ballot papers Ackers v. Howard,
16 Q. B. D. 751; Pritchard v. Mayor, &c., of Bangor,
13 App. Cas. H. L. 249,) the want of malice is a full
defence, because he may be mistaken in a point of
law (Ashby v. White, 2 Lord Raym. 938.)

Under s. 82 of the 6 Vic, c. 18, no other oath or affirmation shall be required, nor shall a vote ten

ered by a registered voter be rejected, except by reason of its appearing to the returning officer, or his deputy, upon putting the above questions, or either of them, that the person so claiming to vote is not the same person whose name appears on the register, or that he had previously voted at the same election, or except by reason of his refusing to answer the said questions, or to take the said oath or make the said affirmations; and no scrutiny shall here

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A scrutiny when allowed.

Sec. 3.

after be allowed by or before any returning officer with regard to any vote given or tendered at any such election. So that “unless the vote of a personator is objected to, there is no machinery provided for enabling us to examine upon which side the vote was given in order to strike it off” (pr. Lord Blackburn, Gloucester, 20. & H. 64). After such objection has been taken, if the seat is challenged on petition, a scrutiny may be ordered by an Election Court under Rules 40 and 41 of the Ballot Act.

The answers to the above questions must be positive and unequivocal (Monmouth, Kn. & O. 323, 327);* nor, even if the returning officer know the answers to be untrue, can he reject the vote. But in such a case, and also, it appears, even when the vote has not been challenged, it shall be his duty to “institute a prosecution against any person whom “he may believe to have been guilty of personation, “or of aiding, abetting, counselling or procuring the “commission of the offence of personation by any 6 person at the election for which he is returning “officer” (35 & 36 Vic. c. 33, s. 24).

Moreover, “If any person shall wilfully make a "false answer to either of the above questions, he “shall be deemed guilty of a misdemeanour, and shall " and may be indicted and punished accordingly” (6 Vic. c. 18, s. 81).

There is another case of personation of a some- Personating

voter who has voted.

* There seems nothing in the Act to prevent a voter who has refused to answer these questions at one hour of the day, from returning and doing so later on before the close of the poll, in which case the returning officer would, it is submitted, be bound to allow him to vote.

Sec. 3.

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what different kind, which is provided for by Rule
27 of the first schedule to the Ballot Act, 1872.
Under that Rule, "if a person, representing himself
to be a particular elector named on the register,
applies for a ballot paper after another person
has voted as such elector, the applicant shall, upon
duly answering the questions and taking the oath
permitted by law to be asked," be entitled to
mark a ballot paper of a different colour, which,
instead of being put into the ballot box, is to be
given to the returning officer, and set aside by him
in a separate packet called the “tendered votes list,"
and upon a scrutiny (Rules 40 and 41), the vote of
the personating party will be struck off and the
vote of the person tendering added (Oldham, 1 0.
& H. 152, 153).

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The aiding, abetting, counselling or procuring of personation is equivalent to personation itself; and if an agent gets voters personated, that, if established, is sufficient ground at common law to set aside the election (pr. Willes, J., Coventry, 1 0. & H. 105). But where the agent bona fide believed that the person he induced to personate another was really the voter personated, the election was upheld Gloucester 20.& H. 62, nor does general personation avoid an election at common law unless a candidate or his agent be implicated (Belfast 4 0. & H. 108).

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Voting twice.

The sub-division of many boroughs under the Redistribution of Seats Act, 1885, has led to many persons having a double qualification, but by sect. 8 (3) of that Act, “where any parliamentary borough

Sec. 4.

is divided into divisions a person shall not be registered as entitled to vote, and shall not vote in more than one such division." And if he does vote twice, his vote in respect of his place of abode only can count (48 Vic., c. 15, sec. 5 (2)). In St Andrew's 4 0. & H. 32, and Stepney, ib. 44, the first vote was held good and the second bad without reference to the last cited enactment, which was apparently overlooked. Such double voting does not amount to personation if the voter is proved to have acted bona fide. Nor (in the absence of corrupt motive) is it personation if a voter applies for a ballot paper in a name not his own, but which the overseers had entered on the register as his. (R. v. Fox. 16 Cox. C. C. 166.)

4. Where upon the trial of an election petition (a) respecting Punishment an election for a county or borough (b) the Election Court (c), found, con by the report made to the Speaker (d) in pursuance of s. 11 of election the Parliamentary Elections Act, 1868, reports that any cor- guilty personrupt practice other than treating or undue influence has been ally of corrupt proved to have been committed in reference to such election 31 & 32 Vic. by or with the knowledge and consent of any candidate at such election, (e) or that the offence of treating or undue influence has been proved to have been committed in reference to such election by any candidate at such election, that candidate shall not be capable of ever being elected to or sitting in the House of Commons for the said county or borough, and if he has been elected, his election shall be void; and he shall further be subject to the same incapacities (f) as if at the date of the said report (g) he had been convicted on an indictment of a corrupt practice.

Under this section a candidate who is reported by the Election Court (1) to have committed bribery or personation in reference to an election, or who has been cognisant of and has consented to those offences when comuuitted by another; and (2) to have himself

c. 125.

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