lows: First of all the counted and rejected ballot CRAP IV. papers are to be sealed up in separate packets.' The Returning Officer is then to verify,' in the presence of the agents, the ballot paper account, which each presiding officer is, as we have seen, required to give him. This account shows, as we have seen, the whole number of ballot papers entrusted to each presiding officer, and accounts for them under the heads of papers in the ballot box, unused, spoilt, and tendered papers. He will verify this account by opening the sealed packets (mentioned in paragraph 2 in rule 29) of unused and spoilt ballot papers, and counting the papers; by opening also the sealed packet containing the tendered votes list (mentioned in paragraph 5 in rule 29), and examining the tendered votes list. will then add together the number of ballot papers found by him in the ballot box and recorded,3 and the number of spoilt and unused papers which he has just counted, and compare the result with each presiding officer's statement. He will thus see

4

He

whether the statement is correct. It must be borne in mind that the Returning Officer is expressly forbidden to open the sealed packet of tendered ballot papers or the marked copy of the register, or the counterfoils, which packets are mentioned paragraphs (3) and (4) in rule 29. As soon as he has completed his verification of the ballot paper account he is to re-seal the packets which he opened." Finally, the Returning Officer is to make a written report of the result of this verification, which report any agent may, on request, take a copy of before it is sent away.

The last duty which the Returning Officer has to Documents

1 Ballot Act, rule 37, App. cviii.

2 Ante, p. 39, and rule 30, App. cvii.

3 Id. rule 34, App. cviii.

4 Id. rule 37, App. cviii., and see dictum of Brett, J., in

Stowe v. Jolliffe, L. R. 9 C. P. 452.

5 Id. rule 37, App. cviii.

to be for

CHAP. IV.

warded to

Clerk of the

Crown in

English and

Irish elections.1

Custody and despatch of

perform with regard to a contested election is, in England or Ireland,' to forward to the Clerk of the Crown' all the packets of ballot papers in his possession,3 together with the other documents relating to the election. These documents are as follows:-(1), Report as to rejected ballot papers ;* (2), report as to result of verification; (3), the ballot paper account made out and sent by each presiding officer; (4), the tendered votes lists ;7 (5), the list of votes marked by the presiding officers, and the statements relating thereto; (6), the declarations of inability to read; (7), the packets of counterfoils; (8), the marked copies of the register; (9), any lists forwarded to him by any of the presiding officers of the names of persons protested against for personation. Upon each packet the Returning Officer is to endorse a description of its contents, the date of the election to which they relate, and the name of the county or borough for which such election was held.'

8

These documents are to be forwarded to the

poll books in Clerk of the Crown in the same manner as poll

1 As to Scotland, see infra, p. 110.

2 As to Ireland, see rule 62 of the Ballot Act, App. cxiii. 3 These consist of, 1st, the two separate packets of counted and rejected ballot papers (rule 37); 2ndly, two packets from each presiding officer, numbered 2 and 3 respectively in rule 29. 4 Ballot Act, rule 36, App. cviii.

5 Id. rule 37, App. cviii.

6 Id. rule 30, App. cvii., and by rule 38 the returning officer is expressly directed to forward this to the Clerk of the Crown. 7 By rule 38 the returning officer is expressly directed to forward to the Clerk of the Crown all the documents mentioned in paragraphs 4 and 5 of rule 29. We have seen above (p. 38, note 3) that it is advisable to put all these various documents in separate sealed packets.

We have seen above (p. 97, note 3) that it seems advisable for presiding officers to make lists of persons protested against for personation. If any such lists are made and forwarded to the returning officer, he should forward them with the other documents to the Clerk of the Crown, but there is no enact ment as to this.

9 Id. rule 38, App. cviii.

England and

books are by any existing enactment' required to CHAP. IV. be forwarded to such clerk, or as near thereto as circumstances admit, that is to say, the Return- Ireland. ing Officer is either by himself or his agent to deliver them to the Clerk of the Crown or his deputy, or to deliver them, directed to such Clerk, to the Postmaster or deputy Postmaster of the place where the notice is given of the members elected, who must give him a written acknowledgment of having received them (stating the hour of such delivery), and must keep a duplicate of such acknowledgment signed by such Returning Officer. The Postmaster, or deputy Postmaster, must despatch the poll-books, so sealed and directed, by the first post or mail after the receipt thereof, to the General Post Office in London (or Dublin, according to the country concerned). Immediately he receives them, the Postmaster, or Postmasters-General must convey them to the Crown Office (or to the Crown and Hanaper Office), and must deliver them there, so sealed, to the Clerk of such office, or his deputy; who must give such Postmaster or Postmasters-General, Sheriff, Under-Sheriff, Returning Officer, or Agent, delivering the books, a written acknowledgment of the receipt of them, stating the day and hour when they were delivered at the office. And such clerk or his deputy must, immediately on such receipt, register them in the books of the office, and indorse on them the day and hour of his receiving them. Moreover, the Returning Officer, must, at the time of transmitting the poll-books through the Post Office, address and forward a letter by the same

1 See note 1 on page 108. 2 The Act says "where proclamation was made of the mem bers elected;" but by s. 15 of the Ballot Act, the term proclamation, ," when used in former acts includes a public notice given in pursuance of the Ballot Act, so that it is now incumbent upon the returning officer to give the ballot papers, &c., to the Postmaster of the place where notice of the members elected is given.

CHAP. IV. post or mail to the Clerk of the Crown, informing him of such transmission, and of their number and description. The latter is required to keep them for one year, and then, unless otherwise directed by an order of the House of Commons, or of one of Her Majesty's Superior Courts, to cause them to be destroyed.2

Result of non-com

pliance with

ments.

4

It may be here observed that these enactments with regard to the transmission of the poll-books, these enact- &c., were under the old practice almost always held to be directory only and not imperative, and consequently committees did not refuse to receive the pollbooks, &c. in evidence, although it appeared that the statutory directions with regard to their transmission had not been complied with. It is now enacted that the production of any document by the Clerk of the Crown shall be conclusive evidence that such document relates to the election in question, but supposing it to have been proved that the directions of the Act as to the transmission of the ballot papers, &c. had not been complied with, it appears probable that the genuineness of the documents in question might be challenged. Such a point, however, has not yet arisen.

Inspection of counterfoils

With regard to obtaining leave to inspect the and counted ballot papers, after they have been sent to the ballot Clerk of the Crown, the Ballot Act makes the following provisions: The sealed packets of

papers.

As to England and Wales, 6 Vict. c. 18, s. 63, App. xxxvi.; as to Ireland, 13 & 14 Vict. c. 69, s. 99, was the enactment regulating the transmission of the poll books to the Clerk of the Crown in Dublin. This 99th section, however, is repealed by the Ballot Act (apparently inadvertently), so there is now no existing enactment for Ireland on this point. It appears, however, that it was intended that the ballot papers should be transmitted in the same manner as the poll books formerly were transmitted.

2 Ballot Act, rule 39, App. cviii.

3 In Waterford, Bar. & Aust. 616, it was held otherwise. 4 See the cases under the old practice collected in Rogers on Elections, ed. 10, 288, 289, 489.

Rule 43, App. cx.

counterfoils are not to be opened, neither are the CHAP. IV. counted ballot papers to be inspected except by an order of the House of Commons or of some tribunal having cognizance of election petitions. Such order may be made subject to such conditions as to the persons, time, place, and mode of opening or inspection as the House or the tribunal making the order may think expedient; but no such order, when or by whomsoever made, is to be put into effect with regard to the vote of any particular elector, until it has been proved that that elector actually did vote, and also until it has been declared by a competent court that his vote is invalid.1

purposes in

Leave to inspect ballot papers may be granted For what not only for the purposes of a contested election, spection but also in the case of any criminal prosecution, if granted. the production of them is necessary.2

ballot

Rejected ballot papers may be inspected by order Inspection of the House of Commons, or of one of Her Ma- of rejected jesty's Superior Courts, or of a Judgein Chambers, papers. upon it being proved on oath that the inspection or production of such rejected papers is required 3 for the purpose of instituting or maintaining a prosecution, or for the purpose of an election petition; but leave to inspect rejected ballot papers will not be granted unless a strong primâ facie case is made out to warrant it. Such an order may make any condition that may seem expedient as to the person's time, place, and mode of inspection or production."

4

1 Ballot Act, rule 41, App. cx. See this rule discussed by Grove, J., in Malcolm v. Parry, L. R. 9 C. P. 623.

2 R. v. Beardsall, L. R. 1 Q. B. D. 452.

3 According to Denman, J., this word "required" means "reasonably requisite and bona fide wanted." Jolliffe, at page 459.

Stowe v.

4 Per Grove and Denman, JJ. (diss. Brett, J.), in Stowe v. Jolliffe, L. R. 9 C. P. 447.

5 Id. rule 40, App. cix. An order of this kind was made by the Irish Court of Common Pleas in the Tyrone case (Macartney v. Corry), Ir. Rep. 7 Com. L. 190. See also Stowe v. Jolliffe (Petersfield case), L. R. 9 C. P. 446.