thority and by his own act, unnecessarily, vexatiously, and illegally open a poll, and frequently and repeatedly urged the electors to name other candidates, and that he repeatedly declared that if they did not propose some other candidate, he must close the poll; and that although no other candidate appeared, and although he was repeatedly called upon by the voters in the interest of Sir John Borlase Warren and the petitioner, to declare Sir John Borlase Warren and the petitioner to be duly elected, the said sheriff, contrary to the duties of his office, neglected so to do; and that after a considerable time had elapsed, during which the electors had polled for no other persons but the petitioner and the said Sir John Borlase Warren, some person or persons intimated that Joseph Birch, Esq. a merchant, residing at Hazel Hali, in the county of Lancaster, and at that time and for some days afterwards, attending as a candidate to represent Liverpool in parliament at the election then depending, would come forward as a candidate; and that three voters only having polied for the said Joseph Birch and 44 for the petitioner and the said Sir John Borlase Warren, the said sheriff adjourned the poll to the subsequent day, without any agent or other persons authorized by the said Joseph, or any elector having demanded a continuance of the poll.

"The petition proceeded to allege, that during the remainder of the poll a scene of riot took place, utterly incompatable with the freedom of election, by which at least 600 persons were prevented from voting for the petitioner; that these riots were caused and continued by persons in the interest of the said Joseph Birch; and that John Davison, Esq. the mayor, John Allen the sheriff, and Thomas Oldknow and Joseph Oldknow, aldermen, and, as such, magistrates of the said town, though repeatedly applied to, took no effectual steps to prevent the violent and illegal acts which were there commirted; and that, when at last the riots increased to such a degree as to render the calling in of an extraordinary force necessary, they refused to have recourse to it, although they had the first legal advice to warrant them in pursuing such a measure.

"Three petitions were afterwards presented from different electors, not differing in substance from the preceding; but on the Sth of December, 1802, a fourth was presented, signed bycertain persons who had signed one of the former, stating, that they had learnt with extreme regret that their names were affixed to a petition containing such allegations as have been mentioned, against the magistrates of the town; that they disclaimed all such allegations, having been informed at the time that they were solicited to subscribe their names; that they were only called upon to declare that their intention was to have voted for Mr. Coke, and praying such relief as to the house should seem meet. This petition was ordered to lie on the table.†

• Votes, 46. 49, 59.

Votes, p. 187. See Journ. 22. 401. 456.

There being no dispute concerning the right of election, the last determination was entered as read. Vid. Journ. 10 June,

1701.

"The petitioners proposed in the first place to shew, that the election, in point of law, being finished before Mr. Birch was noníínated, Mr. Čoke should have been returned by the mayor; and consequently ought now to obtain his seat from the judgment of the committee.

Secondly, That at least the election should be declared void, on account of the riots.

“Thirdly, They desired of the committee a special report to the house, of the conduct of the mayor, and the other magistrates.

"The substance of as thuch of the evidence as it is material to relate, is given in the petition of Mr. Céke One circumstance only need be added, namely, that after the nomination, a few rotes being given for the two candidates, (as is the custom at Nottingham, though there be no opposition) some persons having suggested to the, sheriff that it was time to close the poll and make the return, Mr. Coke desired that a few more might be allowed to give their voices. This request was much insisted upon by the counsel for the sitting member, as at least an acquiescence on the part of the petitioner to the cop-• tinuance of the poll.

"Evidence was given of the most enormous and unexampled ricts and it was also proved, that Mr. Coke's committee applied to the mayor to call in the military, who were stationed at the distance of two miles from the town, to quell them; tha Mr. Birch protested against such a measure; that in fact the mayor ordered the mili tary into the town, but on their arrival stopt the poll, which was not resumed, till it was thought that quiet was so far restored as to admit of their being sent away again.

As there was scarcely any dispute that the tumults were such as to avoid the election; and as the conduct of the magistrates involved merely a question of fact upon which the committee exercised their judgment in such a manner as appears by their report to the house, i is unnecessary to detail either the evidence or the arguments relating to either of these points; the au horities cited upon the subject of calling in the military during the time of the election are collected in a note in the end of this case!

"The only question of law that arose, was, whether or not the election was already complete in favour of Sir J. Borlasé Warren and Mr. Coke, before Mr. Birch was nominated ?

The following are the arguments made use of by the counsel for the petitioner:

“Whatever question there may be as to the nature of the power of the returning officer, during a poll, to judge of the legality of votes, there can be no doubt, but that where there is no opposition, his duty is merely that of a minister, to return such as are presented to b unanimous voice of the cicctors, expressed or implied. St. less has he any authority to propose to them to name another peson, or to protract the assembly till another candidate shall ap

pear.

"He is to declate, in the first instance, upon his own view; td whom the majority belongs; but if that is disputed, recourse must be had to a poll, as a more accurate mode of ascertaining it. If there are no more candidates proposed than there are members to be returned, the majority is not in dispute; the electors must be taken to be unanimous; and it is absurd to inquire what is the choice of the greater part, where there is the consent of all.

46

A poll therefore is a nullity, where the foundation of it, namely, a question as to the majority of voices, is wanting. So that the request of the petitioner to the mayor, in this case, that a few votes might be taken, should not have been attended to by him: and as there is no doubt that if he had immediately after the nomination closed the election, and made his return, it could not have been obJected to; the house may do that which he should have done, and amend the return.

"It is necessary to a poll, that there should be a demand of it, either by the electors, or by a candidate; and there is no instance to be found, where it has been held competent to a returning officer, to take it, without any such demand, of his own accord. In the case of Cirencester, Glanv. 110, there being no regular demand made, the poll was held to be void; and he, in whose favour the number of voices was first declared, was there held duly elected.

"All the statutes which respect the conduct of returning officers in the granting or conducting of a poll, relate only to cases where there has been a previous demand of it. Stat. 7 and 8 Will. III. e. 26: s. 3. In case the said election be not determined upon the view, with the consent of the freeholders present, but that a poll shall be required for determination thereof.'-Stat. 25 Geo. III. c. 84. s. 1. "Every poll which shall be dëmtinded.'—

"In the same light it is considered by Lord Coke, 4 Inst. 48, If the party, or the freeholders demand a poll, the sheriff cannot deny the scrutiny.'

"The poll therefore in this instance, neither having been justified by the occasion, nor taken under the authority of the law, was utterly void; and the two candidates, who were at first proposed without, opposition were legally elected, and should have been returned. The election in point of law was finished, and could not be affected by any subsequent act. The case of Arundel, Glanv. 71. shews that it is not in the power of the returning officer to protract the election unreasonably; and there, the votes of ten persons were held to be ineffectual and void, as coming after the election fully past and determined. Or else it might be in the power of an obstinate or wilful mayor or officer, to continue the election at his pleasure.' And the return was amended. And in the case of Westminster, 8 Journ. 280, the return was sustained. A poll had been demanded and granted; but the high bailiff returned those who had the majority on the view, having waited half an hour only; during which time none came to give their votes.

The counsel for the sitting member argued as follows: "The election was not closed at the time when the first votes were given for the sitting member. The petitioner had been nominated

only, not elected. Their final choice was not yet declared: by the nomination, the candidate is only proposed; by the consent of the electors given to that proposal, he is chosen. But a poll may be required, even after the returning officer has declared, upon the view, to whom the majority belongs. And Mr. Glanville says, in the same case of Cirencester, p. 110, If any one had rested unsatisfied that Sir W. Master had the most voices of rightful electors, he might have demanded the poll of them at any time before the assembly was dissolved.' Here the assembly was not dissolved; and the friends of the sitting member might have reasons for not chosing to propose him, till they saw that the returning officer was preparing to make his return.

"Formerly, a much stricter rule was observed as to the time of election, than is at present. Those only voted who were present at the time of the proclamation; and it was a doubt whether persons coming in afterwards could be received to give their voices. It was however settled so early as the time of Glanville,• that he that cometh any time of the day, while the election is in agitation and unconcluded, cometh time enough to give his voice; the whole clection being but one continued actin law.'

"So, as to the granting of a poll, the stat 23 Hen. VI. c. 14. directs the election of knights of shires to be made between the hours of eight and eleven in the forenoon and in the case of Yorkshire, 1 Jouin. 802, Mr. Glanville seems to have been of opinion, that a poll demanded before but not granted till after eleven, was void. But Mr. Serjt. Heywood says: "In modern times, such strictness is not insisted upon; and as the sheriff may declare the majority upon the view after the statutable hours are elapsed, so any freeholder or candidate may demand a poll at any time, whether within the prescribed hours or not, before the sheriff has declared that majority, or within a reasonable time after.'

"Further, as to the time at which a candidate may be proposed : there are no authorities which say that he may not be proposed at any time before the return is made. The case of Montgomery, in the 15th vol. of the Journals, p. 94, is in point to this case. The petitioner, who seems to have been the only person at first nominated, alleging, among other causes of complaint, a surprise in the sitting member appearing as candidate; and it was proved, that it was not till after the election was begun, that one Powel demanded a pell for him. This fact was not disputed, but, on the contrary, confirmed by the evidence produced on the other side. Both the com

mittee and the house resolved the sitting member to have been duly elected and returned. From this case these three points may be collected, which effectually destroy the pretensions of the petitioner:

1. That the nomination and election are essentially distinct; -2. That during the continuance of the election, a third candidate may be proposed;-3. That the election is not concluded till the return is made. So in the case of the county of Essex, in 1689. It appears from the proceedings on Mr. Honeywood's petition, that

Gloucestershire, p. 108.

a poll was not demanded by Mr. Wroth till an hour and a halfafter the reading of the Prince of Orange's letter, and the chairs were already brought to carry Col. Mildmay, and the petitioner. Mr. Wroth was declared duly elected. And formerly the election of the two members might take place on different days. Berealston, 28th of April, 1640. In the case of Bristol, 1 Ld. Gl. 259, the committee held Mr. Burke to be eligible, although he was not named as a candidate till the second day of the poll.

"The circumstance of the poll being granted to the friends of Mr. Coke, and at his request, excludes the question, whether or not there was a regular demand on the part of Mr. Birch? and being once opened, it was not in the power of the sheriff to close it, even at the request of those who first demanded it. Whitel. on Parl. Writ. In fact, it is a very general practice, where there is no contest, for several persons to set their names to the return besides the sheriff; a practice founded probably on the stat. 7 Hen. IV. c. 15, which requires the indenture to be under the seals of all that did choose, and ordains that the form of the writ shall contain the same direction. At all events, the election was unfinished; and while it continued so, it was competent to any person to give his voice for whom he pleased. And it cannot be pretended, that the interval, proved to have taken place from the time of meeting to the time of the first vote given for the sitting member, is an improper delay, or an unreasonable time to be allowed to the electors to make their choice.

"The committee, on the 15th of March, determined the election to be void; and consequently decided as to this point of law against the petitioner; but in their report to the house, they severely censured the returning officer, for permitting, in the circumstances, a poll to be opened.

"The minutes of the committee were printed by order of the house, and the issuing of a new writ was delayed till after the passing of a bill, by which an authority is given to the magistrates of the county of Nottingham, to preserve the peace in the town during the time of elections. It received the royal assent on the 17th of May. The proceedings of the house upon this matter, and the several petitions presented against the bill, will be found in the Journals, from the 20th of April to the 17th of May, 1803.

"The following are resolutions which the committee came to, after determining that neither the sitting member, nor the petitioner, was duly elected:

1. "That it appears to this committee, that John Allen, being the returning officer at the last election for the town and county of the town of Nottingham, acted contrary to his duty in opening a

There was some dispute as to the duration of this interval; the petitions re presented it to have been an hour and an half; but the committee, in their re part, state it to have been about half an hour.