On the other hand, in the Colchester case, 1 Peck. 507, which was subsequent to the Seaford case, the committee resolved that they did not consider the omission of any form prescribed by a directory act, as sufficient to make the election void. In the Orkney case, 1 Fraz. 369, the committee decided, that the election was valid, though the statutory notices had not been given. As illustrating the principle here contended for, may be cited a decision, that an election is not void, though the returning officer has omitted to read the Bribery Act as required by statute. 2 Doug.

452.

This question of legal notice was very fully discussed in a recent case. Athlone, Bar. & Arn. 119. It appeared that the notice of holding the election had been given on the 2nd of July, and the election was held on the 6th July. It was not disputed that the proper notice had not been given, the committee resolved, "That the notice of the day appointed for holding the election for the borough of Athlone, not having been given in conformity with the provisions of the statute 1 Geo.4, c. 11, the conduct of the sheriff, or his officers, appears in that respect to have been irregular; but the committee have no reason to believe that the result of the election was affected by such irregularity" (a).

(a) The 3 & 4 Vict. c. 81, which appointed three clear days notice at the least of elections in cities, &c., did not extend to Ireland. The 9 & 10 Vict. c. 30, has now estab lished the same notice of elections in Ireland as in England. "In all cities, towns, and boroughs, and cities or towns being counties in Ireland, the returning officer is to proceed to the election within eight days after the receipt of the writ or precept, giving three clear days' notice at the least of the day appointed for the election, exclusive of both the day of proclamation and the day appointed for the election.

In the Rye case, 1848, notice was given on the 20th December, 1847, and the day of the election was the 23rd December; the sitting member was the only candidate. A petition was presented by electors, complaining of this irregularity. When the case had been opened, the counsel for the sitting member at once. abandoned the defence of the seat. There can be no doubt that this was a mistake. 1 P. R. & D. 112.

It has before been pointed out that the notice required to be given under the hand of the Mayor, &c. need not be in his handwriting, but may be printed. 2nd Sligo, 1 P. R. & D. 211. Ante, p. 13. It may be useful here to quote the language of Parke, B., in the case of Gwynne v. Burnell (a). "It is by no means any impediment to construing a clause to be directory, that if it is so construed there is no remedy for noncompliance with the direction. Thus the statutes which direct quarter sessions to be held at certain times in the year are construed to be directory (b), and the sessions held at other times are not void; and yet it would be difficult to say that there would be any remedy against the justices for appointing them on other than the times prescribed by the statutes; from the nature of the enactment the Courts have rightly concluded that though the Legislature intended the precise periods to be fixed, they did not intend the consequence of a deviation to be that the appointment should be void."

7. Poll not kept open according to Law.] It would seem that the same principle with regard to the (a) 2 B. N. C. 39.

(b) R. v. Justices of Leicester, 7 B. & C. 6.

deviating from statutory directions, ought to apply in cases where the poll has been prematurely or improperly closed, as in the cases already referred to, and that the election ought not to be vitiated, unless the result of it has been affected by the irregularity. The decisions on this subject have not been uniform.

In the Limerick case, P. & K. 355, the committee determined "that the proceedings of the Sheriffs of the county of the city of Limerick, in opening and closing the poll at hours other than those prescribed by the 2 & 3 Wm. 4, c. 88, and 1 Geo. 4, c. 11, were highly improper; but the committee have reason to believe that their conduct did not arise from any corrupt motive, and further that the result of the election was not affected by such proceedings." Vide Roxburgh, F. & F. 503.

In a recent case, however, 2nd Harwich, Printed Minutes, a committee came to a contrary decision. In that case the committee upon most conflicting evidence came to the conclusion," that the poll had been closed before four o'clock; that the proceedings had been interrupted and obstructed by violence, that in consequence of such interruption and obstruction by open violence, J. W., an elector, who had tendered his vote, had been prevented from recording the same; that the returning officer should not have finally closed the poll, and that the election was void." It is impossible not to observe that this was an extreme case (a).

(a) The frequency of petitions from the borough of Harwich may, in some degree, explain the course adopted in this This was the second petition in 1851, and contained charges of bribery, which were not gone into. This supposition is fortified by the circumstance that the writ for a new

case.

The poll could not have been closed more than three or four minutes before four o'clock; all the violence and obstruction referred to in the decision of the committee occurred at that period, and were caused by the fishermen of the town pulling down the hustings in accordance with an old custom, and carrying away the materials, at a time when they considered the election was over. It was not pretended that the result of the election was affected by it.

It may not be unimportant here to consider whether the rule laid down in this case, is consonant with legal principles. In the first place it must be observed, that there is no direct enactment that the poll shall remain open until four o'clock. By the 62nd section of the 2 Wm. 4, c. 45, as to counties, and by the 67th section, as to boroughs, it was provided that the poll was to continue for two days; for seven hours on the first day of polling, and for eight hours on the second, the poll not to be kept open later than four o'clock on such second day. The 5 & 6 Wm. 4, c. 36, s. 2, confines the time for polling in cities, &c., to one day; and provides "that the polling shall commence at eight, and that no poll shall be kept open later than four of the clock in the afternoon." Though the act expressly prohibits the continuance of the polling, beyond a certain hour, there is no positive direction that it shall remain open until that hour. By the 70th section of the Reform Act, it is provided, "That nothing in this act contained, shall prevent any sheriff, or other returning

election was suspended for more than twelve months, although the election had been avoided on account of the premature closing of the poll. Ante, p. 45.

officer, from closing the poll previous to the expiration of the time fixed by this act, in any case where the same might have been lawfully closed before the passing of this act." Now it seems to be clear that a returning officer was allowed, prior to the Reform Act, a discretion as to the time during which he should keep open the poll; and that in certain cases he might lawfully close the poll before the expiration of the time fixed by law. It is clear that he could have closed the poll with the consent of the candidates, or persons representing them at the election. It is said to have been admitted on both sides in the Rochester case, 2 Roe, 452, that the poll should, in every instance, be kept open until it is fairly to be presumed that all electors, at least such as intend to poll, have polled. See Corb. & D. 80. Chamb. Dict. 473; Hey. Count. 388. In the Rochester case, the committee decided that the poll had been improperly closed, and that the election was void. The poll was closed on the seventh day, there being, at the time, a majority of two only, the candidate, in the minority, protesting that he had, at the time, a sufficient number of votes to turn the balance in his favour. In the Bristol case, C. & D. 80, the poll was closed on the fifth day, there being, at the time, a majority of 500. The friends of the unsuccessful candidate protested against the closing of the poll, alleging that there were more than 500 voters unpolled. The committee, after hearing the case fully argued, resolved that the sitting member was duly elected. The returning officer, therefore, before the Reform Act, though he was prohibited from continuing the poll beyond three o'clock on the fifteenth day, might have legally closed it in certain cases before that time, and the test of the pro