not hold that their votes were thrown away. The committee decided the election to be void. It is obfervable that one of the witneffes in the cafe of Southwark 1797 is reported to have deposed*, that "the returning officer faid, he would receive the votes tendered for either Candidate, that he had confulted counsel on the question of Mr. Thelluffon's eligibility, and that they were of opinion he was eligible." Southampton 1776, † Mr. Fleming was petitioned against as being sheriff of Hampshire at the time of his election; the committee refufed to permit the petitioners to give evidence tending to fhew that the votes given for him were thrown away, inasmuch as there was no fuch allegation in the petition; but the principle was admitted to be," that where there is a legal incapacity, and the fa& of a candidate's being under fuch incapacity is known, the votes given for him are thrown away." The cafe of File 1779. cited Lud. 455. Simeon, 45. is not reported; nor that of Kirkcudbright 1782; but Mr. Luders relates, as to the latter, 1 vol. p. 72. that it having been refolved by the committee in 1781 that Mr. Gerdon had been guilty of bribery, Mr. Johnftone at the enfuing election produced an attefted copy of that refolution to the electors, and informed them of the incapacity of Mr. Gordon to be re-elected. Mr. Johnstone was afterwards feated, upon petition, although he had the minority of votes. Newport (Ifle of Wight) 1785. ‡ The petition stated that the fact of the fitting member being in orders, and incapable to ferve in parliament was fignified to the electors; and alfo, that their votes for him would be loft: the committee decided in favor of the fitting member, and the arguments upon this part of the cafe are not preferved. Flint 1797. Public notice was proved to have been given by Mr. Lloyd, of the minority of his opponent Sir T. Moftyn. The former, on petition, was declared duly elected, though he had the fewest number of votes. See a short note of that cafe, Appendix, No. 3. It is much to be desired that this fubje&t had been rendered clear, by a greater number, and a more uniform current of authorities. The cafes cited cannot be faid to afford any precife or useful principle; they will indeed, hardly justify the rule laid down *Clifford, 224. † 4 Ld. Gl. 87. 2 Lud. 269. 271. in very guarded terms by Mr. Simeon, p. 45.: and the observation of Mr. Serjt. Heywood, that "votes tendered for a perfon who is difqualified to fit in parliament, are thrown away and loft," must be underflood in a very restricted fenfe. The authority of the concluding part of the fame fentence, viz. that “as the fheriff is not a judge of the ability or difability of the candidates, he is bound to receive them" (i. e. the votes)" on the poll, and make his return in favor of him who has the majority," may be doubted fince the cafe of Flint: and it is to be observed, that in the cafes of Fife, Kirkcudbright, Southwark and Canterbury, the committees refolved that the petitioners ought to have been returned; that in the particular case of the eligibility of a fheriff, the writ exprefsly commands that no fheriff fhall be elected; and that by the general directions of the writ, the "most fit and difcreet" knights, and the "most fufficient and difcreet" citizens and burgeffes are to be chofen; which words, Mr. Prynne fays, exclude minors, whofe "election is merely void in law *." See alfo the return for Cockermouth, ante, p. 17. Prynne on 4th Inft. 31. APPENDIX. APPENDIX, No. I. THE BOROUGH OF COLCHESTER, IN THE COUNTY withdrawn, not being it. a8 G. 3. c 52. A PETITION from several freemen of the borough of Col- Petition chefter was offered to the houfe ; ftating, " that a new writ having been lately iffued for the electing a burgess to within the serve in parliament for the faid borough, an election had accordingly taken place, at which Geo. Jackson, Esq. and Geo. Tierney, Efq. were candidates; and that the returning officer had made a return, that there was given at the faid election an equal number of votes for each of the said candidates; and alleging that the faid Mr. T. ought to have been returned; and therefore praying that leave might be given to present a petition, complaining of the faid return, in order that the fame might be tried and determined by a felect committee," &c. A debate arofe upon the motion for bringing up this petition, which was adjourned till Monday Jan. 19; when it was withdrawn by leave of the house ». с Mr. Tier ney. The petition of Mr. Tierney stated, that Bezaliel Angier, Petition of Efq. the mayor and returning officer, was guilty of grofs partiality in favor of Mr. Jackfon; that he refused to permit the poll clerks to be fworn; unneceffarily and arbitrarily adjourned the poll, for the purpose of admitting several perfons to their freedom, whom he afterwards fuffered to vote for Mr. J. and admitted many unqualified perfons to vote for Mr. J.; that Mr. J. had been guilty of bribery and Prefented 7 Feb. 1989, 44 Journ. 16 Jan. 1789, 44 Joura. 87. 19 Jan. 1789, 44 Journ. 88. See 99. Introduction. treating; Petition of Lon. Petition ap treating; and that by thefe, and other undue means, aft equality of votes had been procured for Mr. J. with the petitioner, who had the clear majority of legal votes, and ought to have been returned. This petition was ordered to be taken into confideration on the 24 Feb. d Mr. Jackfon's petition stated, that it was agreed by the Mr. Jack candidates that the poll fhould clofe at 10 minutes past 7 precifely; that when the time expired, the petitioner had a majority; but that contrary to the agreement, a voter was afterwards received for Mr. Tierney, which gave him an -equality of votes with the petitioner, and that this vote should be ftruck from the poll; that Mr. T. had been guilty of bribery and treating, and that Mr. J. had the majority of legal votes, and ought to have been returned. This petition pointed to be was alfo ordered to be taken into confideration on the taken into confidera24 Feb.; an affurance being given to the house, that before 14 days, the that time, Mr. Jackson would enter into his recognizance. petitioner A petition from Mr. Angier, praying to be heard by his undertaking to enter into counfel before the fele& committee against the feveral allehis recogni- gations of Mr. T. and Mr. J. was ordered to lie on the fore the day table. On the day of the ballot Mr. Angier applied by appointed. his counsel to be admitted a party in the appointment of the select committee: Mr. Jackfon's counsel fubmitted this ing officer, matter entirely to the judgment of the houfe; but it was The return- ftrongly refifted by the counsel for Mr. Tierney. The house ing officer complained decided in the negative h. arion within zances be Petition of the return against for an infuffi following members; cient return, Rich. Aldworth Neville, Esq. Chairman, not admitted Rob. Wood, Efq. a party, in John Langston, Efq. the appoint- Sir Cha. Kent, Bart. committee. Burnet Abercrombie, Efq. d Prefented 16 Feb. 1789, 44 Journ. 116. e See Introduction. f Presented 17 Feb. 1789, 44 Journ. 125 26 Feb. 1789, 44 Joura. 131. A The committee confifted of the |