Brightley, in his note to this case, [Brightley's Election Cases, 484,] and it is quite certain that the precedent is quite an unsafe one. Before the ballots should be allowed in evidence to overturn the official count and return, it should appear affirmatively that they have been safely kept by the proper custodian of the law-that they have not been exposed to the public, or handled by unauthorized persons, and that no opportunity has been given for tampering with them. If this is believed to be a rule, founded upon the presumption that a fraud or a crime has been committed, the answer is that the rule does no more than to make choice between two presumptions of law, which in this instance come in conflict, and cannot both prevail. In such a case the question is, which is the stronger, the more reasonable, and the safer presumption? And inasmuch as the ballots are counted by the board of canvassers, immediately upon the closing of the polls, and generally before there has been an opportunity for tampering, and when it cannot be known that the changing of a few votes will change the result, and in most cases by a board composed of friends of each of the competing candidates, it is believed that in the absence of all proof, in case of a conflict between the tally sheets and returns on one side, and the ballots as they are found to be at some period after the election is over, and after the state of the votes as returned has been made known on the other; the correctness of the original official canvass, made by sworn officers at the time of the election should be presumed.

§ 278a. In a more recent case, arising under the same statute, the Supreme Court of California refused to accept the result of a recount because it was not shown that the ballots had been in the interim

sealed up and preserved as vs. Burden, 45 Cal., 241.) Solomon, 19 Kansas, 177.

required by law. (People And see also Hudson vs.

§ 279. The case of Archer vs. Allen, (1 Bartlett, 169,) is another case in which there was a recount of the ballots, after the official count had been made and the result announced. The official canvass showed the election of the incumbent by a majority of only one vote. The recount, which was made by officers of the election, some four months after the day of election, resulted in the alleged discovery of a mistake of two votes in favor of contestant, just sufficient to change the result. The necessity for proving affirmatively that the ballots had not been tampered with, seems to have been felt and conceded by the contestant, and a good deal of testimony was taken upon that point, enough, according to the report of the majority of the committee, to make it clear that the ballots counted at the second and unofficial canvass, were the identical ballots originally deposited in the box. The minority of the committee, however, took the opposite view, and insisted that the proof of identity was insufficient.

After an elaborate debate in the House, the report of the majority declaring the incumbent not duly elected, was adopted, but the resolution giving the seat to the contestant was lost, and the seat thereby became and was declared vacant.

§ 280. An application for a recount of the ballots cast at an election, will not be granted, unless some specific mistake or fraud be pointed out in the particular box to be examined. be ordered upon a general the count of all, and giving particulars as to none of the boxes. [Kansas Case, 2 Parsons, 599.

Such recount will not allegation of errors in

Thompson vs. Ewing, 1 Brewst., 67, 97.] These rulings were made in cases of applications to the Court to order a recount of ballots. Of course such an order might be accompanied with proper provisions for securing fairness and accuracy, and the result might and would be rejected in case of doubt as to the identity of the ballots, but before ordering it the Court held that there must be charges of mistake or fraud sufficiently precise to induce the Court to entertain the complaint, and that a general allegation of errors believed to exist, was not enough to authorize the perilous experiment of testing the election return by the result of a recount.

In Nebraska the canvassing officers have no authority to go behind the poll books and returns and inspect the ballots. (Kane vs. People, 4 Neb., 509.)

§ 281. In Skerret's Case, (2 Parsons, 509,) the Court of Common Pleas of Philadelphia, had occasion to discuss the requisites of a petition to contest an election. The statute of Pennsylvania provided as follows: "That the returns of the elections under this act shall be subject to the inquiry, determination and judgment of the Court of Common Pleas of the proper county, upon complaint in writing, of thirty or more of the qualified electors of the proper county, of the undue election or return of such officer, two of whom shall take and subscribe an oath or affirmation that the facts set forth in said complaint are true," &c. And it was held that the complaint must set forth the facts with particularity and precision, and they must be such as if true to render it the duty of the Court either to vacate the election or declare another person than the one returned, to have been duly elected. It was further held that unless the petition be thus

verified and set forth facts that if true would have changed the result, it will be quashed on motion. No doubt it would also be held bad on demurrer. There is no doubt as to the soundness of this ruling. It is not desirable to encourage groundless or frivolous contests. If the complainants have a solid basis for their complaint, they can readily specify the facts upon which they rely, and if they have not such solid basis, it is better that they be not permitted to proceed. "The true rule," says King P. J., in Skerrit's case, supra, "regulating such proceedings, should be defined so as to advance on the one hand substantial and meritorious, and to arrest on the other, futile and querulous complaints. It is not sufficient to state generally that A, received a majority of votes while the certificate was given to B., and therefore the complainants charge that there was an undue election. This is but a conclusion, and it is not for the pleader to state conclusions, but facts, from which the Court may draw conclusions. If fraud is alleged, the petition must state the manner in which the fraud was effected, and the number of votes fraudulently received or fraudulently rejected." Upon this general subject see Carpenter's Case, 2 Parsons, 537. Lelar's Case, 2 Parsons, 548. Kneass' Case, 2 Parsons, 553.

§ 282. Where some of the grounds set out in the petition are mere irregularities, which, if sustained by proof, would not vitiate the election, they will be stricken out on motion, and the respondent will not be put to the trouble of taking proof to rebut them. Kneass' Case, supra, and see Batturs vs. Megary, 1 Brewst., 192. And it is not necessary to give the names of the persons who are alleged to have voted illegally. (Gibbons vs. Sheppard, 2 Brewst., 2, 65 Pa. St. R., 36. Batturs vs. Megary, 1 Brewst., 162.)

§ 283. It was held by the Supreme Court of Pennsylvania, in Gibbons vs. Sheppard, supra, that certainty to a common intent is all that is required, and that some of the rulings above referred to were too stringent; that the rule must not be, held so strictly as to afford protection to fraud, by which the will of the people is set at naught, nor so loosely as to permit the powers of sworn officers chosen by the people, to be inquired into without well defined cause. (65 Pa. St. R., 36–7.)

Undoubtedly the same rule should be applied to a pleading of this character that is applied to all other similar pleadings. It should state in a legal and logical form, the facts which constituted the ground of the complaint; nothing more is required; nothing less will suffice.

§ 284. In most of the States of the Union, there are statutes to regulate pleadings under which Courts are authorized to allow amendments where petitions or other pleadings are found to be defective, and under most of these statutes a petition in a contested election case may be amended. And in the absence of any statute of this character, the Court trying a case of contested election may, under its general common law power, permit such a petition to be amended. And an amendment ought to be allowed whenever the Court in the exercise of a sound discretion shall be of opinion that the ends of justice will be thereby promoted. (Kneass' Case, 2 Parsons, Philadelphia, 553. Brightley's Election Cases, 337.)

§ 285. There is, however, a very strong reason for requiring any such amendment to be made in