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1875 affected. He referred to the following cases, The Harwich WOODWARD (2nd) Case (1), the Belfast Case (2), the Hackney Case (3), the

v.

SARSONS.

Canterbury Case (4), the Wigtown Case (5), and Haswell v. Stewart. (6) And, after observing upon the several instances of bad or doubtful votes set out in the Appendices A. and B. in the special case, he submitted that, rejecting the bad votes on the one side and on the other, a balance of good votes would remain in favour of the appellant.

Sir H. James, Q.C. (Reginald Brown with him), for the respondent, contended that the error of the presiding officer at the polling station No. 130 was not of sufficient importance to avoid the election at common law, the election being, notwithstanding that mistake, substantially an election by ballot; that a breach of or non-compliance with the requirements of the Ballot Act could not avoid an election, s. 13 of that Act containing no provision to that effect; and that the mistake relied on had not in fact at all affected the election. He cited the Warrington Case (7), and scrutinized the votes referred to in the appendices: and he referred to the following passage from Leigh and Le Marchant, p. 97,-" A non-compliance with the provisions of the Ballot Act, 1872, and Schedules 1 and 2, or a mistake at the poll, will vitiate the election, if it should appear that the result of the election was affected thereby, but not otherwise, provided the election was conducted in accordance with the principles laid down in the body of the Act: s. 13. This view has been previously taken by the election judges, viz. that a trifling irregularity shall not set aside an election. Thus, 'Supposing it happened that the votes of half a dozen out of two or three thousand voters are omitted to be taken, are all the other voters to be set aside, and the election declared void? It would be, in my opinion, ridiculous to say that because at one booth there was an irregularity the whole of the rest of the borough should be put to the trouble of a new election, and all that has taken place declared null and void. I adhere to what Mr. Justice Willes said

(1) 1 P. R. & D. 314.
(2) 7 Ir. Rep. C. L. 30.
(3) 2 O'M. & H. 77.

(4) Kn. & 0. 131.

(5) 2 O'M. & H. 215.

(6) 1 Court of Sess. (4th Series) 925.

(7) 1 O'M. & H. 42.

1875

at Lichfield (1), that a judge, to upset an election, ought to be satisfied beyond all doubt that the election was void, and that the WOODWARD return of a member is a serious matter, and not to be lightly set aside' per Martin, B., in the Warrington Case." (2)

Giffard, Q.C., was heard on behalf of the returning officer. Chandos Leigh, in reply, submitted that there had been a clear violation of the principles of the Ballot Act. He referred to the Harwich (2nd) Case (3), the Limerick Case (4), the Boston Case (5), Malcolm v. Parry (6), the Drogheda Case (7), Davies v. Lord Kensington (8), the Petersfield Case, Stowe v. Jolliffe (9), and also to s. 26 of the Parliamentary Elections Act, 1868, 31 & 32 Vict. c. 125.

Cur, adv. vult.

July 9. The judgment of the Court (Brett, Archibald, and Denman, JJ.,) was read by

LORD COLERIDGE, C.J. In this case a petition had been presented praying that the election of the respondent Henry Sarsons to the office of town-councillor should be declared void; and a case was stated for the opinion of the Court.

At the election, the petitioner, Woodward, and the respondent Sarsons, were the candidates, and the respondent Sadler was the alderman of the ward and returning officer. The returning officer appointed one Smith to be the presiding officer at polling station No. 130. Upon the electors applying for a ballot paper at such station, the presiding officer marked upon the face of the ballot paper given to each of them the number of the voter appearing on the burgess-roll. This he did to every ballot paper handed out by him. The number of ballot papers so marked and given out by him was 294, of which 234 were given in favour of the petitioner Woodward, and sixty in favour of the respondent Sarsons. The burgess-roll numbers so marked were, in fact, not seen so as to be identified; but they could have been seen by the persons present at the counting of the ballot papers. At polling station

(1) 1 OʻM. & H. 22.
(2) 1 O'M. & H. 44.
(3) 1 P. R. & D. 314.

(4) P. & Kn. 355.

(5) 2 O'M. & H. 161.

(6) Law Rep. 9 C. P. 610.
(7) 2 O'M. & H. 201.
(8) Law Rep. 9 C. P. 720.
(9) Law Rep. 9 C. P. 446.

v.

SARSONS.

1875 WOODWARD

V.

SARSONS.

No. 125, about twenty ballot papers were marked by the presiding officer by the direction of voters who were unable to read. Each of such ballot papers was placed by the presiding officer in the ballot box, wrapped up in the declaration of inability to read made by the voter for whom such vote was marked. Each of the votes so given and so marked by the presiding officer could have been (but was not in fact) identified by the returning officer at the counting of the votes, by comparing the ballot papers with the declarations of inability in which they were wrapped. Twentytwo ballot papers which had been counted as valid were, on inspection after the presentation of the petition, found to be marked in a manner to which objection was now taken. It was contended that they ought all to have been rejected.

The returning officer declared at the election the number of votes thus:-For Sarsons, 965; for Woodward, 775;—majority for Sarsons, 190; and he thereupon declared Sarsons, the respondent, to be duly elected.

The petition, without praying for a scrutiny, prayed that it might be determined that Sarsons was not duly elected, and that the election was void.

Upon these facts, it was argued, on behalf of the appellant, that the election was void, because it had not been conducted in accordance with the Ballot Act; that it was void on that account according to the common law of Parliament, because the deviation from the Act was so great that the election could not be said to be an election by ballot; that it was void under the Ballot Act itself, according to s. 13, because it had not been conducted according to the rules in the schedules, nor in accordance with the principles laid down in the body of the Act, and the non-compliance with the principles of the Act had affected the result of the election; and, as to the last allegation, it was said that the petitioner was not bound, in order to prove it, to shew that on a scrutiny the respondent would be in a minority, but it was enough if he could shew that so large a body of electors as those who did vote or who might have voted at the polling station No. 130, were or might have been virtually disfranchised.

On behalf of the respondents it was urged that the admitted error of the presiding officer at the polling station No. 130 was

1875

V.

SARSONS.

not of sufficient importance to avoid the election at common law, because the election was, notwithstanding such error, substantially WOODWARD conducted as an election by ballot; that in this case it could be demonstrated that the mistake relied on had not affected the result of the election; that a breach of the Ballot Act, however extensive, cannot as such avoid an election, for there is no enactment in the Act to that effect; that no such enactment is contained in s. 13; that it is an enactment to save certain elections, and not to invalidate any; that it is an enactment of extreme caution, stating as law that which was equally the law before.

Arguments were then gone into as to the alleged validity and invalidity of different classes of votes which had been counted. This was not done as by way of scrutiny, but in order to determine whether the alleged mistakes had or had not affected the result of the election.

The questions raised for decision seem to be,-first, what is the true statement of the rule under which an election may be avoided by the common law of parliament ?-secondly, is the present case brought within the rule?--thirdly, whether a breach of the Ballot Act can, as such, be a ground for avoiding an election,-fourthly, if yes, can this election be thereby avoided?

As to the first, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i. e. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with

1875

V.

SARSONS.

such errors as to render the voting by means of them void, or by WOODWARD fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament. This, we think, is the result of comparing the judgments of Grove, J., at Hackney (1) and Dudley (2) with the judgment of Martin, B., at Salford (3), and of Mellor, J., at Bolton (4), all of which judgments are in accordance with, but express more accurately, the grounds of the decisions in parlia ment in the older cases of Norfolk (5), Morpeth (6), Pontefract (7), Coventry (8), New Ross (9), and Drogheda (10),—all of which are mentioned in Rogers on Elections, 10th ed. 365, et seq.

As to the second, i. e. that the election was not really conducted under the subsisting election laws at all, we think, though there was an election in the sense of there having been a selection by the will of the constituency, that the question must in like manner be, whether the departure from the prescribed method of election is so great that the tribunal is satisfied, as matter of fact, that the election was not an election under the existing law. It is not enough to say that great mistakes were made in carrying out the election under those laws: it is necessary to be able to say that, either wilfully or erroneously, the election was not carried out under those laws, but under some other method. For instance, if,

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