reduced, so as to leave him less than the legal amount, but no order had been pronounced striking him off the roll, the commissioner last elected, on this freeholder refusing to take the trust-oath, with the blank filled up with the names and valuation of the lands as originally claimed on, struck his name off an extract of the roll, the principal roll having been taken from him, and then proceeded to call the names of the other freeholders, in the choice of preses and clerk. In these circumstances the Court found the commissioner liable in one penalty of L. 300 1.

Every freeholder who separates from the majority, and sets up a person as preses or clerk, other than him chosen by the majority, incurs a penalty of L. 50 to the candidate chosen by the majority; and any one who presumes to act as preses or clerk, when he has not been chosen by the majority, forfeits for every offence L. 200, to the candidate chosen by the majority 2.

The clerk chosen takes the oath of allegiance, and signs the assurance. The act 16th Geo. II. c. 113, also requires that he shall take and subscribe an oath relative to bribery 1.

6

On the demand of either of the candidates, or of any two of the freeholders, every person, before voting for the mem

1 Frazer v. Gordon, 19th November 1768; Wight, p. 311.

2 16th Geo. II. c. 11, sect. 14.

3 Sect. 37.

4 The following is the tenor of this oath :- I A. B. do solemnly swear, ' that I have not, directly or indirectly, by way of loan, or other device 'whatsoever, received any sums or sum of money, office, place, or employment, gratuity or reward, or any bond, bill, or note, or any promise of ' any sum or sums of money, office, place, employment, or gratuity what'soever, by myself or any other, to my use or benefit, or advantage, to 'make any return at the present election of a member to serve in Parlia'ment; and that I will return to the sheriff, or steward, the person elect'ed by the majority of the freeholders, upon the roll made up at this election, and who shall be present and vote at this meeting. So help me God.'

ber, must, by 2d Geo. II. c. 24, sect. 1. take an oath relative to bribery1.

When the meeting has been constituted, the freeholders proceed to adjust the roll in the same manner as at a Michaelmas meeting. It is not, however, necessary at an election meeting, as it is at a Michaelmas head court, for a person claiming enrolment to lodge previously any claim; neither is it necessary that objections to one already enrolled should be previously lodged, in order to entitle the freeholders to strike him off the roll. It is, however, equally necessary at an election meeting, as at a Michaelmas head court, that the claimant should produce his charter and sasine. In one case a claimant had produced, at an election meeting, the retour of his special service, as heir of his grandfather, and his sasine following thereon, but had omitted to produce the precept from Chancery, which was the immediate warrant of his infeftment. He then attempted to remedy this defect, by production in the Court of Session, of an extract of the precept, and argued, that all that was necessary at an election meeting was to make every production called for by the freeholdThe Court, however, found that he had no right to be

enrolled?.

When a new roll has been made up, it is called by the preses, and the votes are received towards the election of a representative.

In the event of an equality of votes, in this or any other question subsequent to the election of the preses and clerk,

The following is the tenor of this oath :- I A. B. do swear (or, being "one of the people called Quakers, I A. B. do solemnly affirm), I have not ' received, or had by myself, or any person whatsoever in trust for me, or for my use and benefit, directly or indirectly, any sum or sums of mo'ney, office, place, or employment, gift, or reward, or any promise or se'curity for any money, office, employment, or gift, in order to give my ' vote at this election, and that I have not before been polled at this elec

6

. tion.'

2 Cranstoun r. Cunningham, 4th March 1813; Fac.

the former of these officers has the casting vote, besides his own vote as a freeholder 1.

If the preses shall, in the election of the member, receive the vote of any one not on the roll, he shall, for every such offence, forfeit L. 200, to every candidate for whom such person shall not have given his vote2, to be recovered by him, or his executors, by summary process before the Court of Session; and the preses incurs the like penalty for every of fence, if he shall not call for or refuse the vote of any person whose name is on the roll, such person, or his executors, being entitled to recover such penalty by the like process1.

If the person elected representative has not been present at the election, he must, by 16th Geo. II. c. 11, sect. 10, before he takes his seat in Parliament, take the trust-oath, before the Lord-Steward of his Majesty's household, or any person or persons authorised by him for that effect; and if he fails to do so his election is void.

1 16th Geo. II. c. 11, sect. 13.

3 Sect. 43.

2 Ibid.

4 Sect. 13.

CHAPTER VI.

OF RETURNS BY CLERKS AND SHERIFFS.

By the act 7th Geo. II. c. 16, sect. 1, it is provided, that if the clerk of any meeting of freeholders shall wilfully return to the sheriff any person other than him duly elected, or if any person, pretending to be clerk, although not duly elected, shall presume to act as clerk, and wilfully to return any person not duly elected member, he shall for every such of fence forfeit L. 500 to the candidate who has been duly elected.

By the act 16th Geo. II. c. 11, sect. 16, it is declared, that the clerk of the meeting shall return the name of the person elected to the sheriff of the county; and that if he shall refuse, or neglect to do so, or shall return any other person than him elected by the majority, he shall for every such offence forfeit the sum of L. 500 to the candidate chosen by the majority.

Under the above provisions of the act 7th Geo. II. c. 16, the following case occurred:-Mutual protests had been taken by the opposing parties at an election meeting, against votes in the opposite interest; and the commissioner last elected having called the roll for the election of preses and clerk, without regard to the protests of either party, the two parties had separated, and elected each a member. In these circumstances, the clerk of the minority was, by a judgment of the House of Lords, reversing a contrary decision of the Court of Session, found liable in the statutory penalty for making a false return to the sheriff, although he maintained that he conceived the member whom he had returned to have

been duly elected, and that therefore he had not wilfully made a false return 1.

Every sheriff, upon production to him of a copy of the freeholders' roll, made up at the last Michaelmas or election meeting, extracted and signed by the sheriff-clerk; and upon production of the original minutes of the election of preses and clerk, signed by the commissioner last elected, or in his absence by the sheriff-clerk, must, by the act 16th Geo. II. c. 11, sect. 17, annex to the writ the return made by the clerk elected by the majority; and if he neglect or refuse to do so, or annex the return by any other person pretending to be clerk, he forfeits for every such offence L.500, to the person elected by the majority and returned by the clerk. The return is in the shape of an indenture between the sheriff and the clerk 2.

As the act has provided, that, besides the minutes of the election of preses and clerk, a copy of the roll of freeholders shall be produced to the sheriff, it was argued, in a question which arose, whether the statutory penalty had been incurred by the sheriff, that it was in the view of the legislature to bestow upon him some discretion in determining whether the clerk who makes the return to him has been truly elected by the majority of the freeholders contained in that roll. In the case alluded to, the commissioner last elected took upon himself to strike off an extract of the roll, a freeholder whose valuation had been reduced, but against whom no order of exclusion from the roll had been obtained. He then, after calling the roll from that extract,-giving the casting vote himself in the election of preses and clerk,—and signing the minutes of their election, was elected member by his own party. The other party separated and called the roll last made up from the sheriffbooks; the sheriff-clerk signed the minutes of their election of

1 Hume Campbell. Election, 1741; Wight, p. 319; and Craigie and Stewart's Appeal Cases, vol. i. p. 346.

2 See App. No. 12.