and attached to said deposition until several days after the date it purports to have been so written out and attached.

7TH.

That the so-called deposition of William Wallace, James Jones, John Kibble, Alexander Jamar, and 50 other witnesses were never legally signed.

8TH.

That the 110 so-called depositions found on pages 1264 to 1340 of the record are without any certificate whatever, and there is nothing in the record to show that any of the witnesses were sworn, or that any of the evidence was written down in the presence of any commissioner.

9тн.

That the so-called depositions taken before E. P. Shackleford are not certified under his seal as required by law.

10TH.

That 171 so-called depositions which it is claimed were taken before R. W. Figg, esq., were not certified and sealed and forwarded by mail addressed to the Clerk of the House of Representatives.

The record shows that said so-called depositions reached the Clerk of the House of Representatives through a corporation called an express company. It shows they were in a box which was not sealed in any way whatever.

It also shows that many of said depositions remained out of the hands of the commissioner before whom it is claimed they were taken from two to three months before being so illegally transmitted to Congress.

11TH.

The record also shows that depositions which were taken before A. W. Brooks, found on pages 331 to 338, were not taken at a time which the law allowed said depositions to be taken, and it further shows that, contrary to law, they were transmitted to the Clerk of the House of Representatives by a corporation called an express company, and not by mail, as required by law.

12TH.

The record shows that fifty witnesses examined before A. J. Bentley, at Meridianville, were examined without giving contestee notice, as required by law.

That Mr. Lowe's attorneys gave contestee notice they would take said evidence at or near Pleasant Hill, and upon said notice they proceeded to and did take said evidence at Meridianville, six miles from Pleasant Hill. That when the place of taking evidence was finally discovered by Mr. Wheeler's attorney, the commissioner refused to allow him to crossexamine some thirty witnesses who were examined after his arrival; and it further shows that Lowe Davis, the attorney for Mr. Lowe, wrote

admitted as evidence. The counsel of the party producing the witness is the
person who should be permitted to draw the deposition, because he will natural
disposed to favor his client, and it is very easy for an artful man to make use of
expressions as may give a turn to the testimony very different from what the w
intended. I know that depositions are sometimes taken in this manner by con
parties; and when the counsel on both sides are present the danger is not so
but in the present case there was no consent, nor was the c insel of the p
present. The rule of court is that the deposition shall be taken before a ju
ought, therefore, to be reduced to writing from the mouth of the witness in
ence of the justice, though it need not be drawn by him; and in case of dif
opinion in taking down the words of the witness the justice should decide.
cery, if the counsel of one of the parties draws the deposition before the wi
before the commissioners, it will not be permitted to be read in evidence
Ch., 360.) This certainly is a good rule. The taking of testimony by dep
best but a very imperfect way of arriving at the truth; every precau
therefore, be taken to guard against abuses. It is very clear to me that
which the deposition of George Leech was taken is subject to great abus
be put down at once. I am of opinion, therefore, that was very prop

See also the following cases: United States v. Smith, Railroad Co. v. Drew, 3 Woods C. Ct., 692; Beale v. Thomps 70; Shankriker v. Reading, 4 McL., 240; United States v. P C. Ct., 356; Hunt v. Larpin, 21 Iowa, 484; Williams v. 6 Cal., 559; Stone v. Stillwell, 23 Ark., 444.

The proof in this case shows:

1ST.

That 49 depositions found on pages 34 to 266 and 3 record in this case have no certificates at all, and the they were not written out in the presence of the con whom it is claimed they were taken.

2D.

That exhibits were attached to some of these de witnesses did not see.

3D.

That exhibits were attached to depositions w} copies of records which they purport to represen

4TH.

That a transcript from the probate judge of changed, and that matter was written upon reached the hands of Mr. Lowe or his agents o ter written thereon was made the basis of an a brief.

down the evidence, and in some cases wrote it down to convey a different and contrary meaning from that given by the witnesses, and the record shows that this illegally-taken evidence was not certified as required by law, and that it was not transmitted to Congress as required by law.

The record also shows, after Mr. Wheeler had facilitated Mr. Lowe's attorneys in taking evidence by acknowledging service to their notices to take testimony, these same attorneys used most extraordinary and unwarranted means to embarrass and delay Mr. Wheeler in his efforts to take testimony, and that by such means they in some instances stopped the contestee in his efforts to take testimony.

Mr. Wheeler made and filed proper and seasonable motion to suppress these depositions, supporting by affidavits such allegations as were not apparent on the record.

We think the 49 depositions which purport to have been taken at Huntsville before R. W. Figg, esq., and the 110 which purport to have been taken before him at Lanier's, and the 30 which purport to have been taken before A. J. Bentley, at Meridianville, should be suppressed and not considered in this case.

CONCLUSION.

We now make the following summaries of the legal votes to which the contestant and contestee are respectively entitled under the law and the evidence.

With regard to the illegal ballots counted for Mr. Lowe we find that 1,294 are proven by the inspectors or officers of election at the 32 precincts where they were cast, which are fully cited in a table which is found on page 54 of this report.

These witnesses were under the laws of Alabama the custodians of these ballots, and in most cases they corroborate their recollections by counting the ballots in the presence of the commissioner, and they then take one or more of the ballots from the box and put them in evidence by attaching them to their depositions.

There is some proof that in addition to the 1,294 illegal ballots there were also counted for Mr. Lowe as many as 1,734 illegal Weaver and Lowe ballots, but as the proof regarding these latter ballots is not as satisfactory as that regarding the former, we conclude to only consider the 1,294 proven by primary evidence.

Kinlock box.

The proof on this box is so positive and uncontradicted that we do not think the House will hesitate to deduct 16 votes from Mr. Lowe.

Unregistered voters.

An examination of the record shows that over 3,000 persons' names are found upon the poll-lists in 29 different precincts, which names are not found in the registration lists.

We also present a table, marked No. 2, by which we refer the House to direct and specific proof showing that 1,027 unregistered voters voted for Mr. Lowe.

Mr. Lowe was unable to and failed to prove that a single unregistered voter voted for Mr. Wheeler.

Table No. 2 gives pages in the record where the evidence is found, and also the name of at least one witness whose testimony is relied upon. It is also shown by Table No. 1 that at the 29 polling places mentioned in said table 2,698 illegal unregistered persons voted.

But to do the contestant no injustice we deduct 298 from the 2,698 unregistered voters, leaving 2,400 persons who voted at these 29 precincts, and who were not registered.

At these 29 polls Lowe had returned for him 5,630 and Wheeler had returned for him 2, 625 votes.

Now, in the absence of proof for whom these illegal votes were cast the law says that one of three rules must be adopted

1st. Either deduct all from him who had a majority at each poll. 2nd. Or reject the poll..

3rd. Or deduct the illegal votes pro rata.

The first rule would deduct 2,400 from the vote of William M. Lowe. The second rule would deduct 5,630 from the vote of William M. Lowe and 2,625 from the vote of Joseph Wheeler, leaving 3,005 as the balance or total reduction of the vote of William M. Lowe.

By the third or pro rata rule there would be deducted from the vote of William M. Lowe 1,642, and from the vote of Joseph Wheeler 758, leaving the balance or net amount to be deducted from the vote of William M. Lowe at 884, which is the least possible deduction which can be made from the vote of William M. Lowe under either of these three rules.

To show that the pro rata rule does Mr. Lowe more than justice we cite the House to Table No. 2, which shows that 1,027 unregistered persons voted for him; and 541 of the persons included in Table 2 are the same as those included in Table No. 1.

For instance, at Courtland box No. 2 it is proved that 189 unregistered persons voted for William M. Lowe, and on the pro rata rule he is only charged with 111; therefore we are entitled to add 78 bad votes to the 994 (changed to 884) bad votes in Table No. 1.

By adopting the same plan with regard to other boxes we make out Table No. 3:

Table No. 3.

Number of unregistered persons which are included in Table No. 2, and who are proven to have voted for William M. Lowe, and who are not included in the 994 (changed to 884) persons referred to in Table No. 1.