Pryce v Belcher
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1847 |
| Date | 03 July 1847 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 24
IN THE COURT OF COMMON PLEAS
S. C. 4 D. & L. 238; 15 L. J. C. P. 305. For subsequent proceedings see 4 C. B. 866.
pryce v. belchek. May 25, 1846. [S. C. 4 D. & L. 238; 15 L. J. C. P. 305. For subsequent proceedings see 4 C. B. 866.] In case against a returning officer, for refusing to admit the plaintiff's vote at an election of a borough member, the first count-after stating the writ and precept for the election-alleged that the plaintiff was a burgess, that his name was on the register of voters, that he tendered his vote for one of the candidates, and answered in the affirmative the questions authorized by the 6 & 7 Viet. c. 18, s. 81, to be put by the returning officer, and was ready and offered to take the oath prescribed by s. 82; but that the defendant, being returning officer, wrongfully, fraudulently, and wilfully intending to injure the plaintiff, and to hinder and disappoint him of his privilege of and in the premises, refused to permit the plaintiff to give his vote, or allow the same to be entered and recorded, and a burgess was elected, the plaintiff being so excluded from giving his vote. To this count, the defendant pleaded that the plaintiff was not a burgess of the borough duly qualified or entitled to vote in or at the election therein mentioned :-Held, that the plea was bad for ambiguity. -The second count-after stating the writ and precept, and that the plaintiff was a burgess and on the register-proceeded to allege that he tendered his vote for one of the candidates; that it was the duty of the defendant, so being such returning officer, to allow such vote to be entered and recorded and cast up in the poll-books; that he was requested so to do ; but that he, contriving and wrongfully and fraudulently and wilfully and maliciously intending to injure and damnify the plaintiff, and to hinder and disappoint and deprive him of the benefit of his right and privilege aforesaid, instead of entering and recording the plaintiff's vote in the poll-books, to the end and intent aforesaid, refused so to receive the same, or to admit and allow the same to be so entered and recorded, to the end and intent aforesaid; but, on the contrary thereof, caused the vote of the plaintiff to be entered in the column of votes tendered in the poll-books, and at the close of the poll refused to reckon, include, and cast up, and did not reckon, &c., the plaintiff's vote among the votes given for that candidate; whereby the plaintiff was deprived of the benefit of his right to vote at that election:-Semble, that the count disclosed a prima facie cause of action. -^The third count-after stating the writ and precept, that the plaintiff was a burgess and on the register, and that he tendered his vote- alleged that it was the duty of the defendant, as returning officer, to enter the vote on the poll-books without entering into or allowing a scrutiny; but that the defendant, knowing the premises, but contriving and wrongfully, fraudulently, wilfully, and maliciously intending to injure and damnify the plaintiff, and to delay him in the exercise of his privilege of voting, and deprive him of the benefit of his said privilege, wrongfully ordered and allowed a scrutiny to be held with regard to the plaintiff's vote, and his right and qualification to vote, and wrongfully took upon himself to adjudge and determine, at and after such scrutiny so ordered and allowed, that the plaintiff was not entitled to give, and had no qualification enabling him to (a) At the trial before Erie, J., at the second sitting at Westminster in this term, the plaintiff obtained a verdict for 2001. and interest. That verdict, however, was afterwards set aside, and a new trial granted, on the ground that improper evidence of the service of notice on Robinson, had been received. Vide post, Michaelmas Term, 1846. 3 C. B. 59. PKYCE V. BELCHER 25 give, his vote at that election; whereby the plain tiff was delayed, hindered, and obstructed in the exercise of his said privilege of voting, and a burgess was elected for that parliament, the plaintiff's vote being so hindered and obstructed, &c.:- Held, that this count also disclosed a prima facie cause of action-inasmuch as it was possible that the delay arising from the holding of a scrutiny (which is prohibited by the 6 & 7 Viet. c. 18, s. 82) might have had the effect of preventing the plaintiff from exercising his right of voting, and, if so, that the action would be maintainable, the act of the defendant being wrongful, and having caused a particular damage to the plaintiff.-Held also, that the words subsequent to the per quod amounted to an averment of matter of fact, and were not mere matter of legal inference from the preceding allegations. Case, against the defendant as returning officer for the borough of Abingdon, for not allowing the plaintiff to vote at an election for a member of parliament, although on the register of voters. [59] The first count of the declaration stated that the defendant, before and at the time of the committing of the grievances thereinafter mentioned, and after the passing and coming into operation of the 6 & 7 Viet. c. 18, intituled, &c., was mayor of the borough of Abingdon, in the county of Berks, which borough, before and at the time of the committing of the said grievances was, and now is, a borough that returned and returns one member to serve in parliament, and that to the defendant, as mayor of the said borough, by virtue of his said [60] office of mayor, of right belonged the execution of any writ or precept for the election of a member to serve in parliament for the said borough, which should be delivered to him, so being such mayor as aforesaid, and to be and officiate as returning officer at such election: that on the 30th of June, 9 Viet., a certain writ of our lady the now Queen issued out of the court of Chancery of the said lady the Queen, directed to the then sheriff of Berkshire aforesaid, reciting that Sir Frederick Thesiger had been then lately chosen burgess for the borough of Abingdon, in the said county, for the then present parliament of the said lady the Queen, summoned to be holden at the city of Westminster, of the said lady the Queen, on the 19th of August, 5 Viet., on which day the said parliament was begun and holden, and from thence, by several adjournments and prorogations had been adjourned and prorogued, and there then holden; and reciting that the said Sir F. Thesiger, having been so chosen a burgess for the said borough as aforesaid, had since then accepted the office of Attorney-General of the said lady the Queen, as by a letter of the trusty and well-beloved councillor of the said lady the Queen, C. S. Lefevre, speaker of the lower house of parliament of the said lady the Queen, more fully and plainly appeared; by means whereof the subjects of the said lady the Queen, of the said borough, had been deprived of a burgess to treat for the benefit of the said borough in the said parliament of the said lady the Queen ; nevertheless, the said lady the Queen, being unwilling that the commonalty of her kingdom in her said parliament assembled to treat of business concerning the said lady the Queen, the state and defence of her kingdom and the church, from the aforesaid cause, should be lessened or diminished, whereby those affairs might not have a due end, did command the said sheriff that, in the place of the said Sir F. Thesiger [61] within the borough aforesaid, one other fit and discreet burgess of the aforesaid borough, proclamation of the said writ, and of the day and place, being first duly made, freely and indifferently, by those who should be present at the proclamation, according to the form of the statute in that case made and provided, he should cause to be elected; and that the name of the said burgess he the said sheriff should cause to be inserted in certain indentures to be thereupon made between him the said sheriff and those who should be present at such election, whether at the said election he the said burgess should be present or absent, that he the said sheriff should cause him to come to the said" parliament, in such manner that the same burgess so to be chosen might have full power and sufficient authority, for himself and the commonalty of the said borough, to do and consent to those things which in the said parliament of the said lady the Queen by the common council of her said realm (by the blessing of God) should happen to be ordained upon the aforesaid affairs; willing, nevertheless, that neither the said sheriff nor any other sheriff of the kingdom of the said lady the Queen in any wise should be elected; and that the election so made the said sheriff should distinctly and openly, under his seal and the seals of those who should be 26 PEYCE V. BBLCHEB 3 C. B.62. present at such election, certify to the said lady the Queen, in her Chancery, forthwith, remitting to her the said lady the Queen one part of the said indenture annexed to the said writ, together with the said writ; that the said writ, afterwards, and before the committing of the grievances thereinafter mentioned, to wit, on the 1st of July in the year aforesaid, in the said county of Berks, was delivered to one J. B. Monck, Esq., the sheriff of the same county of Berks, to be executed in due form of law ; that by virtue of the said writ the aforesaid J. B. Monck, so being then and there sheriff of the county [62] of Berks aforesaid, afterwards, and before the committing of the grievances hereinafter mentioned, to wit, on, &c., made his certain precept in writing under the seal of him the said J. B. Monck of his office of sheriff of the county of Berks aforesaid, directed to the mayor of the borough of Abingdon aforesaid, reciting the aforesaid writ of our lady the Queen to him the said sheriff directed; that, by his precept, and by virtue of the said writ, he the said sheriff did require him the...
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