In case of equality of votes, there is no casting vote given to any particular person; the return must bear the true state of the fact.

By 8th Geo. II. c. 30, all soldiers quartered in any town or place where an election of peers or commoners is to take place, must be removed two miles from it, one day at least before the election takes place, and shall not return till the day after it. This rule does not apply to a castle or fortified place, where a garrison is usually kept.

1 Journals of House of Lords, vol. xxxviii. p. 150.

B2

PART II.

OF THE ELECTION OF THE REPRESENTATIVES OF

SHIRES.

THE several subjects occurring under this head shall be considered in different chapters.

CHAPTER I.

PROCEEDINGS AT THE MICHAELMAS MEETING.

By the statute 1681, c. 21, the freeholders of each county were ordered to make up a roll of the freeholders in May then next, and to meet at the Michaelmas head court yearly thereafter, for the purpose of revising the said roll.

The statute has provided no remedy if the freeholders shall neglect to assemble, as here ordered; and, in a case where a complaint, on the ground that no meeting had taken place, was presented by a gentleman who had lodged a claim to be added to the roll of the county of Cromarty, and where it was strongly urged that no wrong should be without a remedy, the Court dismissed the complaint as incompetent 1.

By the statute 16th Geo. II. c. 11, which is now, to a great extent, the regulating act both as to Michaelmas and election meetings, it is provided 2, That, at each Michaelmas meeting, the original members shall be such persons only as

1 Mackenzie v. Freeholders of Cromarty, 20th December 1753; Wight, p. 157.

2 Sect. 11.

1

stand upon the roll which shall have been made up at the last Michaelmas or election meeting.

A copy of this roll, together with the minutes of proceedings, is ordered to be delivered to the sheriff or steward clerk,' to be inserted in books to be kept for that purpose; which books are ordered to be produced at every Michaelmas or election meeting, under a penalty of L. 100 Sterling1. This penalty is also incurred if he shall neglect to make the entry in the books, or shall refuse an extract to any freeholder who asks it. If the books are not produced, it is declared that a copy of the roll and minutes, extracted and signed by the sheriff or steward's clerk, shall be sufficient. If he shall give out a false extract, he incurs a penalty of L. 100 Sterling, and is incapable of ever after holding his office.

There is no quorum of freeholders fixed by law to constitute a regular meeting. One freeholder may hold either a Michaelmas or election meeting. In a case where various claimants were enrolled at a Michaelmas court, held by one freeholder only, and complaints were lodged against their enrolment by another freeholder, as well as complaints at the instance of those enrolled against the sheriff-clerk, for refusing, at a subsequent election meeting, to call the roll made up by the single freeholder, the Court of Session dismissed the first set of complaints; and, on advising the second, found the statutory penalties incurred by the sheriff-clerk 3.

For the purpose of choosing a preses and clerk of the meeting, the roll is called by the commissioner last elected representative of the county, and, in his absence, by the sheriffclerk 1.

In case of an equality of votes for preses and clerk, the casting vote belongs to the following persons in order; first,

3 Mackay and others v. Reddoch and others, 1762 ; Wight, p. 156,

If both are absent, Mr Wight thinks that the same order should be followed as is observed with respect to the casting vote.

to the commissioner last elected; secondly, in absence of the preceding, to any former representative; thirdly, to the freeholder present, who last presided at any meeting for election; fourthly, to the freeholder who last presided at any Michaelmas meeting; and, lastly, to the freeholder present who stands first on the roll. His casting vote is in addition to the ordinary vote of these individuals.

The minutes of the election of preses and clerk are signed by the person who called the roll at their election, and delivered to the person who has been elected clerk.

The freeholders then proceed to take and subscribe the oaths of allegiance and abjuration, and to sign the assurance 1.

It is not absolutely necessary to take the oath of abjuration, unless it be expressly required to be put by one of the freeholders present 2.

If the expressions of the acts 6th Anne, c. 235, and 1st Geo. III. c. 13, are taken literally, it may be supposed that

1 Wight, p. 150. The form of the assurance is as follows: I do, in the sincerity of my heart, assert, acknowledge, and declare, that * his Majesty King George is the only lawful and undoubted sovereign of 'this realm, as well de jure, that is, of right, king, as de facto, that is, in ⚫ the possession and exercise of the government; and, therefore, I do pro'mise and swear, that I will, with heart and hand, life and goods, main⚫tain and defend his right, title, and government, against the descendants ' of the person who pretended to be Prince of Wales during the life of the 'late King James, and since his decease pretended to be, and took upon ' himself the stile and title of King of England, by the name of James the 'Third, or of Scotland, by the name of James the Eighth, or the stile and ' title of King of Great Britain, and their adherents, and all other enemies, 'who, either by open or secret attempts, shall disturb or disquiet his Ma'jesty in the possession and exercise thereof.' For the oaths of allegiance and abjuration, see p. 12. The oaths to Government may, by 7th Geo. II. c. 16. § 10, be administered before choosing preses and clerk, if re quired by any freeholder present.

Wight, p. 150. See the acts 7th Geo. II. c. 16 § 10; 6th Anne, c. 23, and 1st Geo. II. c. 13.