by the

warrant.

cision on the particular case. Even if the Committee had 1837. decided that the production of the poll book was immaterial, he should be disposed to contend, that such a deci- Speaker's sion was erroneous. But he need not go to that length; for in this case Mr. Humfrey could, on his own showing, have had no other means of ascertaining who the voter to be struck off was, except by the poll book. Yet that poll book is not produced, nor is any satisfactory account given of the loss of the poll book, so as to let in secondary evidence.

If the poll book is necessary to complete the case against John Kelly's vote, the only question is, have the petitioners given sufficient evidence of the loss of the poll book to allow them to enter upon secondary evidence? It is clear that they have not; for there is no evidence of the destruction, none of a search in the proper repositories.

Mr. Thesiger.-The only questions are, whether the poll book was material, or, if material, whether the petitioners have sufficiently accounted for the non-production of it? On looking at the register, although there are six John Kellys, yet there is not one of them, except the voter now in dispute, who was of Roscat. Then the notes of the last election Committee, taken by the clerk of the House of Commons, show that John Kelly of Roscat, was the voter struck off by the House of Commons. All that the petitioners are called on to prove is, that this voter, John Kelly, was struck off, whose vote was litigated before the former Committee.

Mr. Maule, in reply, said, he would assume that the Committee considered the production of the poll book material, from their having required a fresh inquiry into the cause of its absence. In making this assumption, he did not necessarily impugn the former decision of the Committee; for the Committee may have considered, that in the former cases the non-production of the poll book

1837. was admitted to have been sufficiently accounted for to let in secondary evidence. But, as the Committee had now called for an account of its non-production, and that inquiry had proved completely unsatisfactory, it must become clear to the Committee, that no secondary evidence could be admitted. But, even if the notes of the proceedings before the last Committee are admissible, those notes do not state that John Kelly, whose name was struck off, was John Kelly of Roscat.

Resolved." That the vote of John Kelly be struck off the poll."

Four other votes were then struck off by consent.

WILLIAM KELLY'S CASE.

There were two William Kellys on the poll, both of whom had been struck off by the former Committee, but one of whom had been re-registered on the 26th of June, 1836; the other on the 23d October, 1836. The latter was the one intended to be objected to; but the following entry was made in the poll book opposite to the name of the voter actually objected to," registered 26th June, 1836." Mr. Rushton objected to this vote being gone into, as to contra- the description on the poll book showed that this case description was the same as that of John Allen, which had already of a voter been adjudicated upon.

Evidence

not allowed

dict the

on the poll

book.

Mr. Thesiger contended, that the entry on the poll book was not conclusive evidence, as the entry was not material. But the Committee might hear evidence to show that the entry was inaccurate.

Resolved-"That the petitioners may not proceed in

this case."

This closed the List No. 6. Thirty-four votes out of thirty-five having been struck off from the list.

1837.

HUGH NOWLAN'S CASE.

Mr. Thesiger then proposed to add the vote of Hugh Nowlan of Newtown to the poll for the petitioners.

The following is an extract from that part of the statement delivered in by the petitioners, which applies to the vote of Hugh Nowlan.

"That the petitioners against the return will seek to have put on the poll for the said Thomas Bunbury, the vote of Hugh Nowlan of Newtown, a duly qualified elector, which was duly tendered and given at the said election for the said Thomas Bunbury, on the first day of the said election, but which was afterwards, on the last day of the said election, by the said sheriff, improperly rejected and struck off the poll; and will show that the said Hugh Nowlan was duly registered and entitled to vote at the said election."

statement

Mr. Rushton objected, that the description of Hugh In the Nowlan's vote was not made with sufficient distinctness in handed in the statement delivered in by the petitioners, on the ground by the petitioners, the that the name of the barony was not added to the descrip- name of the Barony tion; he relied on 42 G. III. c. 106, s. 3, and 47 G. III. was not c. 14, s. 4.

added to the description of a voter.

Held

Resolved-That the objection be overruled. Evidence was then produced of the circumstances under immaterial. which Hugh Nowlan's vote had been struck off; from which it appeared, that the voter's qualification was situate in the Barony of Idrone East, but that he was improperly described in his certificate as of the Barony of St. Mullens; that he had polled for Mr. Bunbury on this certificate in the Idrone East booth, and had been objected to. The person who saw him vote did not know the ground of the objection;

The

but the barrister who argued on behalf of Hugh Nowlan's vote, before the assessor, proved the objection to have been

1837. on the ground of the defect of the certificate. It was also proved, that the objection had been argued before the assessor, and decided by him to be a valid objection; and that the assessor indorsed on the objection paper, "Reject this vote." That the assessor was then requested, on behalf of the voter, to allow him to withdraw his certificate and poll upon his affidavit, in which the barony was correctly stated. That the assessor had expressed his opinion, that the voter could not do this; and said that he should hold the voter to the document which he had first produced. The voter did not go back to the booth and demand to vote on his affidavit, but his name was by mistake placed on the poll, and included in the return of the day by the deputy sheriff: this occurred on the 15th of February, the first day of the election; on the 18th of February, being the day on which the poll closed, and about the time of the close of the poll, after the numbers were cast up, but before they were declared, the vote was struck off the poll, in obedience to a written request from Mr. Vigors, made by him at the instance of the assessor.

An affidavit from the deputy sheriff was also read in evidence, in which it was sworn, that the insertion of Hugh Nowlan's name on the poll had been made by mistake.

In the course of the evidence it was attempted to be shown, that in another case the assessor had allowed a voter for Mr. Vigors to fall back upon his affidavit, after his certificate had been held bad.

Mr. Maule objected to the introduction of evidence of the conduct of the sheriff in other cases, whilst Hugh Nowlan's vote was under discussion; and after argument it was resolved::

"That evidence of the decision of the assessor, in the case of another vote, is not admissible in inquiring into the

case of Hugh Nowlan." (1) Evidence was also adduced of the conduct of the assessor in striking off Hugh Nowlan's vote.

Mr. Maule here inquired whether the Committee did not mean, by their last decision, to exclude all inquiry into the conduct of the Assessor; but the chairman stated, that "The conduct of the assessor, so far as it affected the vote of Nowlan, was not excluded by the decision of the Committee."

Mr. Thesiger also read part of the statement of the high sheriff, in which he gave the following explanation of the removal of the vote-"The high sheriff will show the fact to be, that the deputy had made a mistake in casting up the poll book, and had reckoned one of the voters who had voted for Vigors, as though he had voted for Bunbury."

Mr. Maule called a witness to show that this part of the sheriff's statement was erroneous, having been prepared on behalf of the sheriff, in a hurried manner, from imperfect notes of the proceedings. He also called Mr. Keogh, the high sheriff; but

Mr. Thesiger objected to his being examined, on two grounds.

First His having been in the room during part of the discussion.

(1) There is an inaccuracy here in the Minutes of the Evidence printed by order of the House of Commons, in the omission of the word "not" from the resolution. See Minutes of Evidence, p. 47. The Minutes are, in the main, so remarkably accurate, that I should have almost doubted the correctness of my own note, if there had been nothing to confirm it. But it is obvious, from the Minutes themselves, that evidence of the decisions of the assessor on other votes was not in fact gone into. Again, the subsequent inquiry of Mr. Maule, and the answer of the Chairman, show that some limit had been placed on the inquiry into the assessor's conduct. There are also other circumstances which enable me to rely with confidence on my own note of the resolution. E. H. F.

1837.