Sect. 2. vered to another 1727, and of Bossiney and Wells, just mentioned; that where the sheriff has delivered his precept to an improper Where preperson, the legal returning officer may proceed to an cept delielection; and that the return signed by him, and tendered to the sheriff in due time, notwithstanding that his adversary was in possession of the precept, will be considered as the legal return, and annexed as such the writ and precept. As to vacancy in the office either at the time of issuing the precept, or between that time and the time when the return should be made: and how such vacancy would affect the election proceedings. 1st. Of Vacancy at the time of issuing the Precept. Cases of such vacancy do not seem to be in any way provided for. than the proper officer, the latter may held the election notwith standing. Roe p. 456, 38. Such cases, however, and those where there has been Glanv. 37, no known or fixed returning officer, seem in principle analogous; and in the latter, it appears from the resolutions laid down in the case of Bletchingly, that any elector may act. It is there said, that "where there is no known or special officer to this purpose, within the borough, and the electors are many, and all in equal degree of right and interest, every one of them is a lawful officer to this purpose, to warn such of his fellows as he thinks good, to meet at such time and place as they appoint." 2d. Of Vacancy after issuing the Precept. There have been instances of such offices becoming vacant after the precept has been issued; but the house has not adopted any fixed course thereupon. Sect. 2. H. B. 167. 13 Journ. In case of a vacancy of the returning officer under the precept, after notice tion, but be If the sheriff die after the returning officer has received the he must transmit the return to the new sheprecept, riff; but in case the returning officer should die, after notice of the time and place of election has been given, the manner of proceeding has not been settled. Dartmouth, 9th January, and 12th February, 1699. Mr. Davy, high sheriff of Devon, by his petition, set forth in substance, that, pursuant to the writ, he directed and sent his precept to the mayor and burgesses of Clifton, Dartmouth and Hardness, for electing a burgess, &c. and delivered the same to Mr. Whitrow, the mayor; that he proclaimed the day for the election, but died before the day appointed; that the burgesses and freemen, notwithstanding proceeded to election; that some of them returned Mr. Herne by one indenture, and others returned quence of Mr. Holt by another indenture. He further prayed the direction of the house, whether both, or which of the two indentures, he ought to return to the clerk of the crown; or whether he could return either of them, they not coming to his hands by the proper officer, who had so died after the proclamation made, before the election. of the elecfore it took place, in conse which two elections were holden by dif ferent persons, the house declined giving any particular directions to the sherif The house did not, in consequence of this application, give any particular directions as to what course should be pursued; but ordered, "That the sheriff be directed 66 according to his duty, to make a return of his writ." He thereupon forwarded both returns into the crown office. Each noticed the death of the mayor; the one was expressed to be," by several of the burgesses;" the other, by several of the magistrates and free burgesses,” and to be, "under the common seal." These matters were opened by the counsel, but no witnesses were examined. The house (though upon what ground is not stated) resolved, that Mr. Herné and Mr. Holt, who had been returned, the one by the one indenture, the other by the other, were respectively not duly returned, and a new writ issued. Sect. 2. A change It seems that if a change of such officer fairly takes place, in consequence of death, or of expiration of the period of office, pending the election proceedings, of officer taking place the person succeeding to the office should complete pending the what remains to be done, as appears from the follow- proceedings ing cases. + * it seems the successor may act. 397. Bridgnorth, 20th February, 1600, which was before 1 Journ. there was any provision to enable the under sheriff to act, there is the following entry; "A writ before the session to the sheriff; the sheriff dies before the election." Resolved, "The new sheriff to return; the bailiff cannot." Returning officer must act uprightly, impartially, and consistently. See the penalty they will incur if they act otherwise, in the 3d part, title Return. As to the returning officer being a judicial or only a ministerial officer. Vid. ante ch. 1. s. 2. • Lord Glenbervie speaks of such having been the practice, and that no objection has been made to it. 1 Doug. 138. Milborne Port, (n. B.) + But in case there be not time for the election of such new officer, before the return of the writ, the manner of proceeding is vexata questio, the law having made no provision for such an event. See the same point in the Dorchester case, 3d and 4th December, 1689, 10 Journ. 300, 301. In the case of Milborne Port, 1775, where there were different persons claiming to be returning officers at the same time, under different titles, a question arose upon the right of return, and it was agreed upon the construction of this act, that if the precept were to be delivered to the returning officer of any borough, who should go out of office, and another be appointed legally between that and the time of the election, such new officer should execute the precept. That such new officer was in the eye of the law, the same officer with the former, and the above statute only meant in order to prevent litigation or delay at any election, to fix who was to execute the precept, when there should be different persons claiming to be returning officers at the same time, under different titles. That since the stat. of W. 3. there have been many instances of precepts received by one returning officer, and executed by his successor, and the legality of such execution had never been disputed. 1 Doug. p. 113, and 139. (n )' H Sect. 2. 7 H. 4. c. 15. One day inclusive, the other exclusive. DUTY OF RETURNING OFFICERS. 1st. To give notice to Electors. The returning officer of a city or borough was formerly under no particular direction of time or place for proceeding to the election, provided he was ready to make his return within the time required by the writ. By the statute of H. 4. he was directed " After the receipt of the precept from the sheriff, and convenient notice of time," to cause to be elected, &c. The uncertainty and partiality arising from this latitude, made some regulation necessary, and it was therefore enacted, that he should proceed to the election within eight days from the receipt of the precept, giving four days notice thereof. As to the four days, (although there is no direction by stat. 7 & 8 W. 3. c. 25, and the stat. 19 G. 2. c. 28, does not extend to boroughs,) it has been usual to reckon one H. B. 158. of those days inclusive, and the other exclusive; thus to give notice on Monday for an election on Friday; and this construction is supported not only by general usage, but by a decision of the house. * 1 Seaford Where both the days of giving notice and proceeding case, 1785. to election have been reckoned inclusively, the notice has been deemed too short, and the election set aside. 3 Lud. S3 G. 3. This notice of the time and place of election, must be given within certain hours of the day, in strict conformity with the statute, or the election is utterly void. See before counties, p. 26, and notes. It will therefore appear that the time from the receipt of the precept by the proper officer, to the day of commencing the election in boroughs and towns, not being counties, cannot be more than eight days; nor can the election take place sooner than the fourth day, exclusive of the day on which the precept was received, so that the notice and time for commencing the election in cities, &c. being counties, and in boroughs, &c. not being counties, are now in effect the same, ante p. 75. n. For a form of such notice, see Appendix, No. 11, p. 13. Of the notice with respect to particular places: Cities, boroughs, and towns, in Wales and Monmouthshire. In addition to the provisions of the statutes just mentioned, that of the 35 Hen. 8. c. 11. must also be attended to. Sect. 2. Burgesses contributory to shire of cities, &c. towns, to have notice of election. That statute, in regulating the payment of the wages of the knights and burgesses for places in Wales, by s. 3, adverting to the contribution by the inhabitants of the above cities and boroughs, not finding bugesses for parliament themselves, to the wages of the burgesses of the shire towns, provided, with regard to the notice of election, that the burgesses of all cities, boroughs, and towns, contributory to the payment of the burgesses wages of such shire towns, should be admonished by proclamation, Roe p. 508. or otherwise, by the mayors, bailiffs, or other head officers of the said towns, or by one of them, to come, at such time and place, lawful and reasonable as should be by them, or one of them, assigned, to give their elections for the electing of such burgesses. Although the contribution, by reason whereof the burgesses so to be admonished, were to receive such notice, and afterwards to vote at the election, has by practice ceased to operate, the rule which was grafted thereupon, still prevails, and it is necessary that it should be observed. Election void, be In the case of Cardigan, 30th April, 1662, the elec- 8Journ.417. tion of Mr. Philips was holden void, because notice had not been given to the out corporations and boroughs according to the above act. cause such notice not given. New Shoreham.-The officer to whom the writ or pre- New Shorecept shall be directed, is, by the statute 11 Geo. 3. c. 55, ham. |