although he was palpably wrong in judgment upon the questions before him; but a failure in his ministerial duty generally occafions a bad return. Thus in Lugfden's cafe, the fheriff had nothing to do but to enter an elector's vote, which having not done, and when informed of his error, ftill refusing, the Committee amended it; because the return could not correfpond with the election while this mistake ftood. But in the prefent cafe the return may correspond with the election, because no vote was admitted. Perhaps the sheriff may have erred in his judgment, but still, he having jurisdiction, his decifion is binding as to the return, which is his own act; whereas in Lugfden's cafe, the Committee have determined that he had no authority knowingly to enter a vote for one candidate, that was given for another, because he thereby occafions a falfe return.

That even if the Committee were not to follow this distinction, they would fee good reason to approve the sheriff's decifion upon the queftion before him, according to the principles which are established in granting

new...

new trials in Westminster-hall; That the cafe before the fheriff refembled an application for a new trial in order to admit fresh evidence, which the judges never allow, unless it appears that the party could not have obtained fuch additional evidence on the former trial: That if an application were to be made in the King's Bench on the ground now laid before the Committee, it would be refused, because the new evidence existed and was forth-coming at the first trial, if the party had used due diligence to obtain it; the parties were intitled to inspect and have copies of the land-tax affeffments, and Mr. St. John might have produced the right duplicate when the vote first became the subject of inquiry before the fheriff.

The counsel for the fitting member contended,

That it was impoffible to distinguish this cafe from that of Lugfden; that the refolutions upon that vote directly contradict the pofition of the oppofite counsel, that queftions on the return must be independent of

the exercife of the fheriff's judicial authority; in that cafe the fheriff exercifed a judicial authority; as to which it fignifies little, according to the petitioner's counsel's own diftinction, whether it be employed upon the right or the fact of voting; in Boll's cafe he did the fame: It was an error of judgment in each, according to the former refolutions of the Committee. The sheriff having acted in both cafes by the fame rule, it neceffarily follows, that if one may be reviewed now, the other may likewise, because it is now determined that his rule was wrong. If fuch review fhould lead into the merits of the election, the counsel for the petitioner may thank themselves for it, as their example taught the way to fuch inquiries; but certainly Boll's cafe goes no further than Lugfden's. The vote of the former was refused though the sheriff had no doubt of his right, because he was thought to have come too late; that of the latter being falfely entered, was fo continued, because he too was thought to have applied too late. If the fheriff had no authority to refufe the application for Lugf

den,

den, the rejecting Boll was equally without authority, and the return made in confequence, must be equally defective, because contrary to the number of votes whofe right was not doubted.

The cafe put of a motion for a new trial does not meet the argument for the fitting. member, which is, that the trial (if it may be fo called) of Boll's vote was continued during the whole poll, according to Lugfden's cafe, and therefore the new evidence was tendered in time and before the final determination; for which reason it ought to be received now.

The Committee refolved,

"That the cafe of Boll refers to the "merits and not to the return."

The counsel for the fitting member, upon being informed of this refolution said, that the case of Harrison, which they had likewise intended to bring forward, and the others, were under the fame circumstances as that of Boll, and therefore they would

would give the Committee no further trouble.

The court was then cleared, and the Committe after deliberation determined, "That the fitting member was not duly "returned, and, That the petitioner ought to "have been returned *.

Which refolutions the chairman reported to the House on the fame day (1July).

The return was amended in the House on the next day, after which, the order ufual in fuch cases, was made, viz.

"That the honourable St. Andrew St.

John, and the freeholders of the county "of Bedford, be at liberty to petition this "House to question the election of the right honourable Robert Henley Ongley, "Lord Ongley in the kingdom of Ireland, " within fourteen days next, if they think fit +."

Mr. St. John prefented a petition accordingly on the seventh of July ‡, which

* Votes, 1 July, p. 329. P. 351.

‡ Votes, p. 378.

+ Votes, 2 July,

was