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Act of January 27, 1818-January 1, 1820. R. C. ch. 51.-April 2, 1831, Ses. Acts 1830-31, ch. 1. Sup. R. C. ch. 88.

rate poll or polls may have been authorized to be held, shall, within six days. after the day on which such election shall have commenced, deliver to the clerk of the county, city, town or borough, as the case may be, a copy of the poll by him taken, to be by the said clerk safely kept and preserved in his office; and in cases where a separate poll or polls may have been authorized to be held, the officer conducting the election at the courthouse shall, within six days after the day on which the said election shall have commenced, deliver to the clerk of the county, city, town or borough, as the case may be, a copy of the poll taken by him at the courthouse, as well as of the poll or polls reported to him as aforesaid, by the officer or officers holding such separate poll or polls as aforesaid, to be safely kept and preserved in the office of the said. clerk. The said clerk shall suffer any candidate or elector at any time to take a copy of the said poll or polls.* Oct. 1646, act 20, 1 Stat. Larg. 333; April 1699, act 2, 3 Stat. Larg. 172; Oct. 1705, c. 2, § 4, 3 Stat. Larg. 239; 1785, c. 55; 1831, c. 1, § 12.

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15. § 19. § 11. It shall be the duty of every sheriff or other officer, before he commences taking the poll, or otherwise conducting any election provided for in this act, to take and subscribe before some justice of the peace of the county, city, town or borough, in which such election is to be held, the following oath or affirmation: I, A. B., do solemnly swear, (or affirm, as the case may be,) that in conducting the election to be held for a delegate or delegates, or senator, (as the case may be,) to the general assembly of this commonwealth, for the county, city, town, borough or election district of in the present year, I will, to the best of my skill and judgment, admit all persons to vote entitled to do so, and reject all not so entitled; that I will not persuade or otherwise attempt to influence the vote of any person, or be guilty of any partiality for any candidate or person voted for; and that as far as depends on me, I will make a just, true and fair return of the result of the said election, according to law: So help me God." The justice of the peace, before whom the said oath or affirmation shall be taken and subscribed, shall return the same, attested by himself, to the clerk of the county, city, town or borough, to be by him filed and preserved: and it shall be the duty of the sheriff or other officer conducting such election, not to enter on the poll the vote of any person who may offer to vote, unless he believes such person to be qualified to vote, or unless such person shall take an oath, which the said sheriff or other officer conducting said election is hereby authorized to administer, or make solemn affirmation before the said sheriff or other officer conducting the said election, in this form: "I, A. B., do swear, (or solemnly affirm, as the case may be,) that I do in my conscience believe myself to be duly

*This is part of sec. 12 of act of 1831; the residue of the section repealed by act of February 24, 1834, Ses. Acts 1833-34, c. 23, § 1, p. 59.

Query. Does an action on the case lie against a sheriff for refusing to permit a person, who is lawfully entitled, to vote at an election of members of the general assembly? See Custis v. Lane, 3 Munf. 579. It seems, it does lie-if malice be proved. Jenkins v. Waldron, 11 Johns. R. 114. To sustain this action, it is necessary for the plaintiff to shew, in the first place, that he had a right to vote-and in the second place, that the returning officer in refusing his vote, was actuated by malice. If the officer

act honestly and uprightly, according to the best of his judgment, he is not amenable in an action for damages. Cullen v. Morris, 2 Stark. Cas. 577.

"The returning officer is, to a certain degree, a ministerial one, but he is not so to all intents and purposes; neither is he wholly a judicial officer. His duties are neither entirely ministerial nor wholly judicial; they are of a mixed nature. It cannot be contended that he is to exercise no judgment, no discretion whatsoever in the admission or rejection of votes. The greatest confusion would prevail if such a discretion were not to be exercised." Pr. Ld. C. J. Abbott in Cullen v. Morris.

Act of January 27, 1818-January 1, 1820. R. C. ch. 51.-April 2, 1831, Ses. Acts 1830-31, ch. 1. Sup. R. C. ch. 88.

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qualified to vote for a delegate or delegates for the county, city, town, borough or election district of or for a senator for the district of which the county, city, town, borough, or election district of part, to serve in the general assembly of this commonwealth: So help me God." Of which oath or affirmation, a note shall be made in the poll-book opposite, and referring to, the name of the person swearing or affirming. The making such oath or affirmation, or any other oath or affirmation by this act required, falsely, shall be perjury. April 1699, act 2, 3 Stat. Larg. 172; Oct. 1705, 1b. 240; Aug. 1736, 4 Stat. Larg. 477; 1785, c. 55, 12 Stat. Larg. 124; 1831, c. 1, § 11.

16. § 20. § 21. The names of electors offering to be polled, but refusing to make such oath or affirmation, shall be entered in the poll-books in separate lists, with the names of the candidates for whom they voted, and shall be added to the poll, if, upon scrutiny, the votes be justified. Nov. 1762, 7 Stat. Larg. 14, p. 524, and Nov. 1769, 8 Stat. Larg. 311. Ibid.

17. § 9. Any elector qualified according to this act, failing to attend any annual election of delegates, or of a senator, and if a poll be taken, to give, or offer to give his vote, shall pay one fourth of his portion of all such levies and taxes as shall be assessed and levied in his county the ensuing year: and for discovering such defaulters, the sheriff, or other officer taking the poll, shall, within ten days after the said election, deliver to the clerk of the county or corporation court, as the case may be, a copy of the poll by him taken, to be kept in his office, who shall suffer any candidate or elector to take a copy thereof; and the said clerk is hereby directed to cause a copy of the same to be delivered to the next grand jury, to be sworn for the county or corporation, who shall be charged by the presiding magistrate to make presentment of all such persons qualified to vote, residing in the said county or corporation, who shall have failed to have given their votes at the said election agreeably to law. And for the better information of the said jury, the sheriff of the county is hereby commanded, under the penalty of one hundred and sixty-six dollars, sixty-six cents, to be recovered and appropriated as the penalties for other neglects of his duty, to lay before them a list of all the land-holders resident therein. See Jan'y 1639-40, act 19, 1 Stat. Larg. 227; Oct. 1646, act 20, Ib. 333; Oct. 1701, c. 2, § 3, 3 Stat. Larg. 238; Nov. 1769, c. 1, 8 Stat. Larg. 308; Oct. 1785, c. 55, 12 Stat. Larg. 122.

18. § 10. The several county and corporation courts shall be empowered, for good cause to them shewn, to remit any penalty incurred by a freeholder, for not having given his vote at any election for a delegate or senator, according to law. 1788, c. 52.

19. § 15. § 17. No elector shall be admitted to poll a second time, at one and the same election, although at the first time he shall not have voted for as many candidates as by law he might have voted for. If the electors who appear, be so numerous, that they cannot all be polled before sun-setting; or if, by rain or rise of water-courses, many of the electors may have been hindered from attending, the sheriff or under-sheriff, or other proper officer conducting such election at the courthouse, and the superintendents of any separate poll, (if such cause shall exist at any separate poll for the adjournment thereof,) may and shall, by request of any one or more of the candidates, or their agents, adjourn the proceedings on the poll until the next day, and so from day to day for three days, (sundays excluded;) giving public notice thereof, by proclamation, at the door of the courthouse, or other place of holding such election; and shall, on the last day of the election, conclude the poll, according to the directions aforesaid; but if the poll to be held at any such election, is not

Act of January 27, 1818–January 1, 1820. R. C. ch. 51.—April 2, 1831, Ses. Acts 1830-31, ch. 1. Sup. R. C. ch. 88.

closed on the first day, the same shall be kept open two days thereafter. Oct. 1785, c. 55, 12 Stat. Larg. 123; 1798, c. 15; 1831, c. 1, § 17.

20. § 14. § 16. The officers conducting elections at the courthouse of each county, city, town or borough, within the senatorial districts of this commonwealth, shall meet at the times and places herein above directed, and from the said polls of their respective counties, cities, towns and boroughs, shall certify as the senator elected, the man who shall have the greatest number of votes in the whole district; and if the greatest number of votes for several persons to be a senator be equal to one another, and the votes of the returning officers be equal also, it shall be decided by a lot taken by such returning officers at their said meeting; a copy of which certificate shall be forthwith set up by them at the front door of the courthouse of the county, city, town or borough, at which their said meeting may be held, informing the public of the name of the senator elected in manner aforesaid; and another copy thereof shall be by them delivered to the clerk of the said county, city, town or borough, to be by him safely kept and preserved in his office; and the said clerk shall suffer any candidate or elector, at any time to take a copy thereof. Ibid. and 1798, c. 14; 1802, c. 12; 1831, c. 1, § 16.

21. § 21. § 22. The sheriff or other officer conducting an election of delegates in any county wherein no separate poll or polls may be authorized to be held, shall certify the election of a delegate or delegates in this form, or to this effect: "Be it known to all to whom these presents shall come, that sheriff, (or deputy of sheriff,) of the county of

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ral assembly. Given under my hand and seal, the day and year aforesaid." Acts 1830-31, c. 1, Sup. R. C. c. 88, § 22.

22. 23. The sheriff or other officer conducting an election of delegates at the courthouse of any county, wherein a separate poll or polls may be authorized to be held, shall certify an election of a delegate or delegates in this form, or to this effect: "Be it known to all to whom these presents shall come, that I, sheriff, (or deputy of sheriff,) of the county of on the precincts,) on the

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sent the same in general assembly. Given under my hand and seal, the day and year aforesaid." Ibid. § 23.

23. § 25. The returning officers of the several counties, cities, towns and boroughs, forming election districts, shall certify the election of a delegate for each district, in this form, or to this effect: "Be it known to all to whom these presents shall come, that we,

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for the district composed of the said counties, to represent the same in general assembly. the day and year aforesaid." Ibid. § 25.

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Act of January 27, 1818-January 1, 1820. R. C. ch. 51.-April 2, 1831, Ses. Acts 1830-31, ch. 1. Sup. R. C. ch. 88.

24. § 24. The mayor of a city, town or borough entitled to particular representation, or other officer conducting an election for a delegate in such city, town or borough, shall certify the election of a delegate in this form, or to this effect: "Be it known to all to whom these presents shall come, that I, , mayor of the city, (town or borough,) of ,) in the said city, (town or borough,) on the in the year of our lord by the electors of the said city, (town or borough,) qualified according to law, caused to be chosen a delegate for the said city, (town or borough,) namely,

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25. § 26. The returning officers of the several counties of a senatorial district, shall certify the election of a senator in this form, or to this effect: "Be it known to all to whom these presents shall come, that we,

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of by the electors of our said respective counties, cities, (or towns or boroughs,) qualified according to law, caused to be chosen a senator for the district composed of the said counties, namely, to represent the same in general assembly. Given under our hands and seals, the day and year aforesaid." Ibid. § 26.

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26. § 24. § 27. The officers directed to make such certificates of elections as aforesaid, shall cause them to be delivered, those of delegates to the clerk of the house of delegates, and those of senators to the clerk of the senate, one day at least, before the succeeding session of general assembly. Ibid. § 27.

27. § 16. § 18. In all cases whatsoever, where by law the sheriff is directed to hold an election, in case of the death of the said sheriff, or other officer, whose duty it shall be to conduct such election, or where there shall be no such officer, the senior magistrate, and in his absence, inability or incapacity, by being a candidate, the second, and so in succession to the junior magistrate, is hereby authorized, empowered and required to perform the duties of the sheriff, prescribed by law in similar cases. And if the mayor of any town, city or borough, entitled to representation in the general assembly, shall by death or any other cause whatever, be unable to attend and conduct the election according to the provisions of this act, the recorder, or if there be no recorder, or he be unable to attend, the senior alderman capable of attending, shall attend and conduct such election according to law. Ibid. § 18.

28. § 16. § 56. If from death, sickness, or other cause, the returning officer, herein before designated, in any case of a senatorial election, or in any case of an election of a delegate for an election district, shall be unable to attend for the purpose of comparing the polls, and making the returns at the time and place prescribed by law, then such duties, and all other duties consequent thereupon, shall be performed in the following manner, that is to say: If the sheriff, being the proper returning officer, shall have died, then the duties aforesaid shall be performed by his successor, if any there be; if there be no successor, then by the coroner of the county; if such sheriff be sick, or otherwise unable to attend, the said duties shall be performed by such of his deputies as he shall appoint for that purpose; or if he have no deputy, by the coroner. If the deputy sheriff, being the proper returning officer, shall have died, or be unable to attend, the said duties shall be performed by the high

Act of January 27, 1818-January 1, 1820. R. C. ch. 51.-April 2, 1831, Ses. Acts 1830-31, ch. 1. Sup. R. C. ch. 88.

sheriff, or by deputy. If a mayor, being the proper returning officer, shall have died or be unable to attend, the said duties shall be performed by his successor, if any there be; if none, by the recorder; if no recorder, then by the senior alderman capable of attending. If a recorder, being the proper returning officer, shall have died, or be unable to attend, the said duties shall be performed by the mayor, if any; if none, by the senior alderman capable of attending. If a magistrate or alderman, being the proper returning officer, shall have died, or be unable to attend, the said duties shall be performed by the magistrate or alderman next in seniority, and capable of attending. And if there shall be no person hereby authorized, who shall be able to attend and perform the said duties, then the clerk of the county, city, town or borough, as the case may be, shall be bound in all things promptly to perform the duties aforesaid. Ibid. § 56. The said magistrates, recorder or aldermen, in case of refusal, shall be subject to all the penalties to which sheriffs are liable, and shall be entitled to the same compensation. Ibid. § 19.

29. 57. Any officer failing to perform any duty by this act required, for failing to perform which, no specific penalty hath been herein before prescribed by this act, shall for such failure forfeit and pay to the commonwealth, for the benefit of the literary fund, a sum not exceeding one hundred dollars, nor less than fifty dollars. And in all cases in which penalties imposed by this act may be attempted to be enforced, the defendant shall be entitled, if he desire it, to have the benefit of the trial by jury.

Act of March 19, 1838, ch. 36, § 2, p. 44.

30. § 2. If any sheriff, deputy sheriff, mayor, recorder, or other returning officer of elections, designated in an act, entitled, "an act concerning general elections in this commonwealth," passed April second, eighteen hundred and thirty-one, shall wilfully and corruptly withhold the polls which he is required by law to return, in any election which may be hereafter held in this commonwealth, in additon to the penalty imposed by the fifty-seventh section of the act aforesaid, shall be guilty of a misdemeanour, punishable by fine not less than five hundred dollars, and by imprisonment not less than six months, to be ascertained by a jury, in a prosecution by information or indictment, to be instituted in any court of record in the county of which the polls or any part thereof are so withheld. See ante, No. 29.

Act of January 27, 1818–January 1, 1820. R. C. ch. 51.-April 2, 1831, Ses. Acts 1830-31, ch. 1. Sup. R. C. ch. 88.

31. § 25. § 28. For election of a delegate or senator, when a vacancy shall occur by death or resignation, during the recess of the general assembly, a writ or writs shall be issued by the governor; and in all other cases of vacancy, such writ or writs shall be issued by the speaker of that house whereof he was a member; but, if the vacancy be occasioned by acceptance of an office, the writ or writs shall not be issued without the special order of the house; and the officer or officers to whom such writ or writs shall be directed, so soon after the receipt thereof, as he or they may be able, shall give to the electors notice thereof, as well as of the time and place of election, by advertisement to be affixed at four of the most convenient places in the county, city, town or borough, and shall cause the election to be made in the manner herein before prescribed, and shall have the same power of adjourning the proceeding upon the poll, as in case of a general election. The return of such writ for electing a delegate or delegates for a county, shall be in

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