The House of Commons has always upheld elections made by the returning officer de facto, although he may not have had a legal title to the office (a). If the office of returning officer should at any time be vacant in any city, borough, or town, the sheriff of the county must appoint some fit person to act as such officer during the vacancy (b).

Duties of Returning Officer.] Having thus briefly considered who is the officer who is charged with the business of holding the election, it is proposed to point out in the next place what are the several duties which he has to discharge. These are all expressed very clearly and minutely in the different enactments on this subject. At the present day if the returning officer uses the most ordinary discretion, it will be impossible for him to miscarry in the fulfilment of his duties.

Notice of Holding Election.] The first thing that the returning officer has to do upon the receipt of the writ, is to give notice of the time and place of holding the election.

English Counties.] The time for holding county elections is fixed by the 16 & 17 Vict. c. 68, s. 2.

Sect. 2. "Whereas by the fourth section of the Act of the twenty-fifth George the third, chapter eighty-four, it is provided, that immediately after the receipt of the writ for making any election of a knight or knights to serve in Parliament for any county or shire in England or Wales, and endorsing on the back thereof the day of receiving the same,

(a) Roe on Elections, 443, 446.

(b) 6 & 7 Wm. 4, c. 101, s. 3; and 6 Vict. c. 18, s. 99.

March. No person having once served is compellable to serve again. No person in holy orders, nor any churchwarden or overseer of the poor within any borough, can be the returning officer. Any person qualified to be elected as a member of Parliament may claim to be exempted from serving the office. In order to escape from the duty, he must, within one week after he shall have received notice of his appointment, make oath as to his qualification before any justice of the peace, and notify the same to the sheriff. In the Wakefield case, Bar. & Aust. 271, Mr. H., who had acted as returning officer for several years before the election then in question, gave notice to the sheriff some months after his re-appointment, but just at the time that a dissolution was expected, that he was anxious to decline the office. He wrote to the sheriff, that "having already served the office of returning officer, and being now a candidate, he begged to tender his resignation, and hoped on the grounds above stated it would be accepted." The sheriff proceeded as if this was a legal resignation of the office, and appointed another person in the room of Mr. H.

Mr. H. stood at the election, and was returned, but was unseated on petition, on the ground that he was the returning officer de jure. The seat was then claimed by the candidate who was in a minority at the election, but had given notice to the electors of the disqualification of Mr. H. It was argued that as Mr. H. was the returning officer de jure, no one else could hold a valid election. But the committee decided the election to have been well holden by the officer appointed by the sheriff, and gave the seat to the petitioning candidate.

Want of title in the returning officer will not inva

lidate the election (a). If the office of returning

election the sheriff This contingency

officer is vacant at the time of the is himself to execute the writ (b). cannot happen in boroughs under the Municipal Reform Act, for in these, if the mayor is dead, absent or incapable of acting, the Town Council elect one of the aldermen to fill his place (c).

Duties of Returning Officer.] Having thus briefly considered who is the officer who is charged with the business of holding the election, it is proposed to point out in the next place what are the several duties which he has to discharge. These are all expressed very clearly and minutely in the different enactments on this subject. At the present day if the returning officer uses the most ordinary discretion, it will be impossible for him to miscarry in the fulfilment of his duties.

Notice of Holding Election.] The first thing that the returning officer has to do upon the receipt of the writ, is to give notice of the time and place of holding the election.

English Counties.] The time for holding county elections is fixed by the 16 & 17 Vict. c. 68, s. 2. Sect. 2. "Whereas by the fourth section of the Act of the twenty-fifth George the Third, chapter eighty-four, it is provided, that immediately after the receipt of the writ for making any election of a knight or knights to serve in Parliament for any county or shire in England or Wales, and endorsing on the back thereof the day of receiving the same,

(a) Roe on Elections, 443, 446, post, 358.

(b) 17 & 18 Vict. c. 57; this act omits to repeal 6 Vict. c. 18, s. 99.

(c) 5 & 6 Wm. 4, c. 76, s. 57.

as by law required, it should and might be lawful for the sheriff of such county and he is thereby required, within two days after the receipt thereof, to cause proclamation to be made at the place where the ensuing election ought by law to be holden of a special county court to be there holden for the purpose of such election only on any day (Sunday excepted) not later from the day of making such proclamation than the sixteenth day nor sooner than the tenth day: And whereas it is expedient to limit the time for proceeding to such elections: "Be it therefore enacted, That hereafter any such special county court, for the purpose of the election of a knight or knights to serve in Parliament for any county, riding, parts, or division of any county in England or Wales shall be holden on any day (Sunday, Good Friday and Christmas Day excepted) not later from the day of making such proclamation than the twelfth day nor sooner than the sixth day; provided that this section shall not apply to the election for any county of a city or of a town."

The time for making the proclamation is not altered; it is to be within two days after the recept of the writ (a). Notice in English Boroughs.] The same act (b) repeals the 3 & 4 Vict. c. 81, and provides in lieu thereof.

"That in every city or town being a county of itself, and in every borough, town corporate, port, or place, returning or contributing to return a mem

(a) County elections must be held "betwixt the hours of eight and eleven before noon." 23 Hen. 6, c. 14, s. 2.

(b) 16 & 17 Vict. c. 68.

ber or members to serve in Parliament in England and Wales; the officer, to whom the duty of giving notice for the election of such member or members belongs, shall proceed to election within six days after the receipt of the writ or precept (a), giving three clear days' notice at least of the day of election, exclusive of the day of proclamation and the day of election."

Although the sheriff, or other returning officer, might expose himself to censure for not giving the proper notice, it is not probable that any election would be avoided on that account at the present day, unless it could be proved that, the result of the election was affected by the irregularity (b). In a recent case, Rye, (1848) P. R. & D. 112, where insufficient notice of holding the election had been given, the seat was abandoned without argument, although the sitting member had been the only candidate at the election. This case proceeded upon a misapprehension of the law of Parliament on this subject, and can never be cited as an authority.

Notice at Scotch Elections.] The sheriff to whom the writ for elections in Scotch counties is directed must endorse on the writ the day on which he received it, and must then, within two days thereafter, announce a day for the election, which day shall be not less than six nor more than twelve days after the day on which he received the writ; 18 Vict. c. 24. Intimation of holding the election is to be given as directed in 2 & 3 Wm. 4, c. 65, s. 28.

(a) No precept issues now, as the writ goes directly to the returning officer in England.

(b) Orme on Elections, 16; 1 Frazer, 369; post, 365.