Kenny v Kenealy

• Jurisdiction: Ireland
• Judgment Date: 12 November 1894
• Date: 12 November 1894
• Court: Court of Appeal (Ireland)

Kenny

and

Kenealy (1).

Appeal.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Parliament — Registration of voters — Notice of objection — Omission of polling district — Date of signing notice — Onus of proof — Evidence.

In a borough which had been divided into polling districts a notice of objection served on a voter omitted to state the particular polling district to which the voter objected to belonged:—

Held (affirming the decision of the Revising Barrister), that the notice of objection was bad.

The objector could not swear that he signed several notices of objection on the days they purported to bear date, but the notices were duly signed by him before they were served, and they were duly served within the limits of time for giving such notice:—

Held (reversing the decision of the Revising Barrister), that the general prima facie presumption that all documents are made on the day they bear date applies to notices of objection.

Appeal by the objector from the decision of Mr. Moloney, Revising Barrister for the borough of Kilkenny, holding certain notices of objection bad, and refusing to amend the same.

The facts appear from the case stated, which was as follows:—

1. “The names of John Burke and other persons named in the first and second schedules to this case, appeared on the town clerk's Lists of Voters (No. 17) for the borough of Kilkenny.

2. By a resolution of the Corporation of Kilkenny, passed on the 1st day of June, 1885, pursuant to the 48 Vict., c. 17, sect. 9, sub.-sect. 3, the said borough had been divided into two polling districts, known as the ‘Court House Polling District’ and the ‘Tholsel Polling District,’ respectively. The resolution was in the following terms:—Ordered and agreed upon ‘That all within the Municipal boundary be formed into one polling district, and all outside that boundary, and within the Parliamentary boundary, be formed into another polling district, and that the polling places for voters, within the borough boundary, be at the Courthouse, and the polling place for voters, between the

borough and the Parliamentary boundary, at the Tholsel.’ It was also agreed that the List of Voters be made out alphabetically.

3. The said John Burke, and each of the other persons named in the first and second schedules had been duly served with a notice of objection, which complied in all respects with the form prescribed by the 3rd schedule to the 48 Vict., c. 17, except that it wholly omitted to state the particular polling district to which the voter belonged. I append the notice of objection served in the case of the said John Burke (1).

4. It was contended, on behalf of Richard Kenny, the objector, the omission did not invalidate the notice of objection.

5. I decided that the notice of objection in each case ought to have specified the particular polling district to which the voter belonged, and that, by reason of the omission, the notice of objection to each of the persons named in the first and second schedules was invalid.

6. I was then asked, on the part of the objector, to amend the notice of objection in each case by inserting the proper polling district. I refused to make such amendment, being of opinion that the total omission of an essential element of the prescribed form was not a ‘mistake’ within the meaning of sect. 27, sub-sect. 2, of the Registration (Ireland) Act, 1885.

7. The notices of objection to John Burke and each of the other persons named in the first schedule were signed by Richard Kenny before they were served, and were duly served upon the persons objected to, within the limits of time allowed for giving notice. The said Richard Kenny, on being examined before me, could not, however, say that he signed the notices of objection upon the days they purport to bear date. He deposed that he used to...