and revise the list for the parish. The writ was tested in January, 1857. The Supplemental Court of Queen's Bench having awarded a peremptory mandamus.-Ield, on and Excep error, that the mandamus was properly directed to the existing mayor and tional Proass-ssor to hold the court and revise the list of the past year.-Rochester visions. (Mayor, &c.) v. Reg. (in error). (El. Bl. and El, 1024)].

(2.) If

(a.) An overseer neglects or refuses to make, sign, or deliver

a parish burgess list, as required by this Act; or (b.) A town clerk neglects or refuses to receive, print and publish, a parish burgess list or list of claimants or respondents, as required by this Act; or

(c.) An overseer or town clerk refuses to allow any such list to be inspected by a person having a right thereto; he shall for every such neglect or refusal be liable to a fine not exceeding fifty pounds, recoverable by action.

(3.) An action under this section shall not lie after three months from the neglect or refusal. A moiety of any fine recovered therein shall, after payment of the costs of action, be paid to the plaintiff.

former law on

expiration of

Ballot Act.

[The effect of section 48 of the Act of 1835 is preserved in this clause.] 76.—(1.) If the Ballot Act, 1872,* ceases to be in force, so Revival of much of this Act as directs that the poll at a contested election of councillors shall be conducted as the poll at a contested parliamentary election is by the Ballot Act, 1872, directed to be conducted, and as applies provisions of the Ballot Act, 1872,† to a poll at a contested election of councillors, shall forthwith cease to be in force, and thereupon the enactments in Part. IV. of the Third Schedule shall revive and be in force.

[The enactments which are to revive on the expiration of the Ballot Act, are contained in Part IV. of the Third Schedule, as follows:—

"With respect to a contested election of councillors, elective auditors, or revising assessors, the following rules shall be observed:

1. The returning officer shall cause the requisite polling booths to be erected, or the requisite rooms to be hired and used as polling booths. 2. The returning officer shall, at least two days before the day of election, give public notice of the situation, division, and allotment of the different booths.

3. Each booth shall be divided into compartments, and the returning officer shall appoint a clerk to take the poll at each compartment.

4. There shall be affixed on each booth a notice specifying the part of the borough for which it is allotted.

5. No person shall be admitted to vote at any booth except that allotted for the part in which his qualifying property is situate, unless no booth is allotted for that part, in which case he may vote at any booth.

The Ballot Act, 1872, amended as regards municipal election by the Municipal Elections Act, 1875, has been, it is hardly necessary to say, continued in force by successive Expiring Laws Continuance Acts.

See page 71 and 72 ante, for sections and rules referring thereto.

Supplemental and Excep tional Provisions.

6. If there is more than one booth, the returning officer may appoint a deputy to preside at each booth.

7. A burgess may vote by delivering to the returning officer or his deputy a voting paper containing the surnames and other names of the persons for whom he votes, with their abodes and descriptions. The voting paper must be signed by the burgess, and must state the qualifying property in respect of which he votes.

[The case of Reg. v. Tart (1 El.and El., 618), although decided with reference to the election of a councillor under section 32 of the Act of 1835, has a bearing upon this subsection. It was thereon held that in order to satisfy the section the name of the burgess voting must so appear upon the face of the voting paper as to show clearly that the name is intended as a signature, and also that the same must be connected with the street, &c., in which the property is situate].

8. The returning officer or his deputy shall, if so required by two burgesses, put to any person offering to vote at the time of his delivering in his voting paper, but not afterwards, the following question :

'Are you the person whose name is signed as [A.B.] to the voting paper now delivered in by you?'

The vote of a person required to answer this question shall not be received until he has answered it. If any person wilfully makes a false answer thereto he shall be guilty of a misdemeanour.

9. The returning officer shall, at the close of the poll, examine the voting papers, and shall publish a list of the persons elected not later than two o'clock in the afternoon of the day next but one after the day of election. [No publication can be made after two o'clock under any circumstances. It would, if actually made, be a mere nullity.]

10. The town clerk shall, for a period of six months from the day of election, keep at his office the voting papers used at the election, and shall permit any burgess to inspect the same on payment of one shilling for each search"].

(2.) But this cesser and revivor shall not affect any act done, right acquired, or liability or fine incurred, or the institution or prosecution to its termination of any proceeding in respect of any such right, liability, or fine.

[The effect of section 15 of 38 & 39 Vict. c. 40 is preserved in this clause. The Ballot Act, 1872, by implication, imposes a duty prima facie on the presiding officer at a polling station during an election to deliver to the voters voting papers bearing the official mark appointed under the Act for the election, and to be present during such election at the polling station, so that the voters before depositing their voting papers in the ballot-box, can show to him the official mark on the back of such papers in accordance with the statute. For breach of these duties, being merely ministerial, an action will lie by a party aggrieved, e.g. who has thereby lost the election through votes given to him being void for want of the official mark, without malice or want of reasonable care on the part of the defendant.

If a clerk be appointed by the returning officer to assist at the polling station, the presiding officer may by the Act, depute to such clerk so much of his duties as he thinks fit, with certain specified exceptions. For the acts of commission or omission of the clerk in the performance of the duties so delegated, the presiding officer will not be responsible, inasmuch as he does not appoint the clerk, and the relation of master and servant does not exist between them. Per Bovill C.J. and Grove J. The Act does not impose on the presiding officer the duty of ascertaining before the voter deposits a voting paper in the ballot box, whether the official mark is on such paper. Per Keating and Brett, JJ.: The statute does impose such duty on the presiding officer. Pickering v. James (L. R., C. P. 8, p. 489)].

PART IV.

[The sections and paragraphs in this Part printed in italics have been repealed-but substantially re-enacted-by subsequent legislation. See the references in footnotes and Appendix].

CORRUPT PRACTICES AND ELECTION PETITIONS.

77.-In this part

Corrupt Practices.

Corrupt
Practices.

"Bribery," "treating," "undue influence" and " persona- Definitions. tion," include respectively anything done before, at, after, or with respect to a municipal election, which, if done before, at, after or with respect to a parliamentary election, would make the person doing the same liable to any penalty, punishment, or disqualification for bribery, treating, undue influence, or personation, as the case may be, under any Act* for the time being in force with respect to parliamentary elections:

.

[By 17 & 18 Vict. c. 102, s. 2, and 22 Vict. c. 35, s. 12, every person shall be deemed guilty of "bribery" who shall offer, promise, or promise to procure, to endeavour to procure, any money or valuable consideration to or for any voter to induce him to vote .. at any parliamentary or municipal election.

The defendant, soliciting the vote of a voter, said " he should be remunerated for any loss of time."-Held, that this was an offer or promise within the sections. -Simpson v. Yeend (L. R., Q. B. 4, p. 626.)].

66

Corrupt practice means bribery, treating. undue influence, or personation † :

[This definition of “ corrupt practice' confirmed decision in Hargreaves v. Simpson (L. R., 4 Q. B. D., p. 403), in which it was held: "By the Corrupt Practices (Municipal Elections) Act, 1872, the provisions of 17 & 18 Vict. c. 102, s. 23, by which giving refreshments to voters at parliamentary elections is made illegal under a penalty of forty shillings, are rendered applicable in the case of municipal elections.]

"Candidate" means a person elected, or having been nominated, or having declared himself a candidate for election, to a corporate office:

These Acts are as follows:

The 17 & 18 Vict. c. 102.

The 21 & 22 Vict. c. 87.

The 26 & 27 Vict. c. 29.

The 35 and 36 Vict. c. 33 (Ballot Act) is confined to sec. 29.-(Councillors, auditors and assessors.)

Repealed by 47 & 48 Vict. c. 70 (1884)-the Municipal Elections (Corrupt and Illegal Practices) Act. See Appendix, page 271.

Corrupt
Practices.

General penalties for corrupt practices.

Disqualifi cation and avoidance of election for corrunt

practices by candidates.

"Canvasser" means any person who solicits or persuades, or attempts to persuade, any person to vote or to abstain from voting at a municipal election, or to vote or to abstain from voting for a candidate at a municipal election.*

"Voter "means a burgess or a person who votes or claims to vote at a municipal election:

"Election court 99

means a court constituted under this Part

for the trial of an election petition:

"Municipal election petition" or "election petition" means a petition under this part complaining of an undue municipal election:

"Parliamentary election petition " means a petition under the Parliamentery Elections Act, 1868 +

"Prescribed " means prescribed by general rules made under this Part:

"Borough" and "election" when used with reference to a petition mean the borough and election to which the petition. relates.

[The effect of sections 2, 3 and 13 of 41 & 42 Vict. c. 26 (1878) is preserved in this clause.]

78. A person guilty of a corrupt practice at a municipal election shall be liable to the like actions, prosecutions, penalties, forfeitures and punishments as if the corrupt practice had been committed at a parliamentary election

[The effect of section 3 of 41 & 42 Vict. c. 26 was preserved in this clause. It has been held that a person convicted of bribery at a municipal election, and fined 40s. in a county court for that offence under the 22 & 23 Vict. c. 35, 8. 11, is not disqualified under that section from serving a municipal office. -Wray, in re (13 W. R.. 633.)-Held, by Cockburn. C.J., disabling clause of 17 & 18 Vict. c. 102, s. 6, limited to parliamentary elections. This clause assimilated municipal and parliamentary penalties.

Each separate act of bribery is a separate offence. Where a person has been guilty of several acts of bribery at a municipal election, he is liable to a penalty in respect of each such act of bribery. Kidderminster case.-Milner v. Bale (L. R., C. P., vol. 10, p. 591).]

School Board elections did not come within provisions of this clause. Re West Bromwich School Board (5 C. P. D., 191).]

79-(1.) Where it is found by the report of an election court that a corrupt practice has been committed by or with the knowledge and consent of a candidate at a municipal election, that candidate shall be deemed to have been personally guilty of a corrupt practice at the election, and his election, if he has been elected, shall be void; and he shall (whether elected or not) during

seven years from the date of the report be subject to the following Corrupt disqualifications:

[The 31 & 32 Vict. c. 125, ss. 43-45 (1868), 35 & 36 Vict. c. 60, s. 4 (1872), contained provisions similar to those in the foregoing subsection].

He shall be incapable of

(a.) Holding or exercising any corporate office or municipal franchise, or being enrolled or voting as a burgess :

(b.) Acting as a justice or holding any judicial office: (c.) Being elected to or sitting or roting in Parliament: (d.) Being registered or voting as a parliamentary voter: [Disqualification from being registered as a voter, by reason of personal bribery, or bribery by an agent with knowledge and consent of candidate necessitates a finding by the report of the election judge under 31 & 32 Vict. c. 125, s. 11, subsec. 14, that he has been so guilty. Inference from facts stated in judge's report not sufficient.--Grant v. Overseers of Pagham (3 C. P. D. 80.)]. (e.) Being employed by a candidate in a parliamentary or municipal election:

(f.) Acting as overseer or as guardian of the poor :

[See 33 & 34 Vict. c. 23, s. 2, whereby persons convicted of treason or felony are incapable of exercising any municipal franchise until they have suffered punishment or been pardoned ].

(2.) If any person is on indictment or information found guilty of a corrupt practice at a municipal election, or is in any action or proceeding adjudged† to pay a penalty or forfeiture for a corrupt practice at a municipal election, he shall, whether he was a candidate at the election or not, be subject during seven years from the date of the conviction or judgment to all the disqualifications mentioned in this section.

(3.) If after a person has become disqualified under this Part any witness on whose testimony he has become disqualified is, on his prosecution, convicted of perjury in respect of that testimony, the High Court may, on motion, and on proof that the disqualification was procured by means of that perjury, order that the disqualification shall cease.*

[The effect of section 4 of 35 & 36 Vict. c. 60 (1872) was preserved in this clause].

Practices.

cotions and

election for

80.-If it is found by an election court that a candidate has Disqualifi by an agent been guilty of a corrupt practice at a municipal avoidance of election, or that any offence against this Part has been committed at a municipal election by a candidate, or by an agent for a candidate with the candidate's knowledge and consent, the candidate

* Repealed by 47 & 48 Vict. c. 70 (1884). See Appendix.

A mere verdict insufficient. Though there is a distinction in criminal cases between the conviction and attainder, yet there is no such distinction in civil cases between verdict and judgment, so that as any effect can follow from a naked verdict in a civil action no penalty takes place till judgment be given on the verdict.-Sutton v. Bishop (1 Wm. Bl. 666.)

tices by

corrupt prac agents, and for offences against this

Part.