afforded satisfactory evidence of the true result. (2 Bartlett, 113.) This was a correct ruling under the Ohio statute, but it must not be assumed that it is authority for any case not arising under a similar law. It was the duty of the contestant in that case, to attack the tally papers as well as the return, because the tally papers were made by statute, substantially, a part of the return. They were papers to accompany the return. They were to be certified and sent in with the return, and they were required to show the time and place of holding the election; the persons by whom it was conducted; the number of votes cast and for whom. It might very well happen that these papers would supply informalities and defects in the returns themselves, and as they were not produced in evidence, it was properly held that they were presumed to be correct and formal, and being so, that they did afford sufficient proof of the result in that case. But ordinarily, where the return is attacked and set aside, it is not necessary for the contestant to go further and set aside all the other election papers. The general rule is that when the return is set aside, both parties must prove their votes by other evidence. The exception to this rule is where there are papers to accompany the returns, which are in fact a part of it, and which would, if formal, cure the defect in the return. In such a case these accompanying papers must be produced. These suggestions of course apply only to cases. where returns are attacked on the ground of informality. Where the attack is made upon the ground of fraud or the like, the court or tribunal having jurisdiction, will proceed with the inquiry, without

reference to what appears upon the face of the

returns.

§ 364. It was held by the majority of the Committee in the House of Representatives, in Koontz vs. Coffroth, (2 Bartlett, 23,) and also in Fuller vs., Dawson, (Ib., 126,) that returns were void and should be rejected if the certificates of the oaths of the election officers were wanting. It must now, however, be regarded as settled, that if the returns are otherwise regular, they are not to be rejected because it does not appear that the officers were sworn. If the contrary does not appear it will be presumed that they were sworn, as the law directs, and even if it be shown that they were not sworn, their acts are not void for that cause alone. (Barnes vs. Adams, 2 Bartlett, 760,) and cases there cited.

§ 365. It is impossible to state more definitely than we have done, the general rule which should govern in determining whether a return should be set aside, and the parties on either side be required to prove their actual vote by other evidence. The rule is that the return must stand until impeached, i e. until shown to be worthless as evidence,-so worthless that the truth cannot be deduced from it. In practice it will be found necessary to apply this rule to an infinite variety of facts and circumstances. The following are examples of its application. Where it was clearly shown that the contestant received one hundred and seventy votes, and the return only gave him one hundred and forty-three votes, and there was other evidence tending to show actual tampering with the ballot box; the return was set aside. (Washburn vs. Voorhies, 2 Bartlett, 54.)

§ 366. In the same case, the testimony concerning another precinct, consisted wholly in a discrepancy between the number of votes actually cast for contestant, as shown by the testimony of voters, and the number returned for him. The difference was twelve votes, and in the absence of any proof of fraud, the return was not rejected, but was corrected and allowed to stand. In Reed vs. Julian, (2 Bartlett, 822,) the discrepancy between the vote proven, as cast for the sitting member and the vote returned for him, being very considerable, and there being other proof tending to show fraud, the return was set aside.

§ 367. Where the place of voting in an election precinct in the city of New York, was not designated or published until the day before the election, so that many voters were not advised of the place, and where the inspectors were in violation of law appointed from non-residents of the precinct, and where the board did not meet at the place designated by law, but selected their own place of meeting, giving no notice to electors, where they might be heard, and where the election was not held at the place designated, but "somewhere near" it, the people having great difficulty in finding the place, and where under these circumstances the vote was unusually large, and there was strong presumptive proof that a part of it was fraudulent; the return was set aside. (Dodge vs. Brooks, 2 Bartlett, 78.) In the report of this case will be found several examples of returns rejected, and of some attacked and not rejected for want of sufficient proof, but the details are too numerous and complicated to be inserted here with profit.

§ 368. To set aside the returns of an election is one thing; to set aside the election itself is another and very different thing. The return from a given precinct being set aside, the duty still remains to let the election stand, and to ascertain from other evidence the true state of the vote. The return is only

to be set aside, as we have seen, when it is so tainted with fraud, or with the misconduct of the election officers, that the truth cannot be deduced from it. The election is only to be set aside when it is impossible from any evidence within reach, to ascertain the true result, when neither from the returns nor from other proof, nor from all together, can the truth be determined. It is important to keep this distinction in mind.

§ 369. A statute of Alabama empowered a "board of supervisors of elections" to hear proof upon charges of fraud &c., and upon sufficient evidence, to reject illegal and fraudulent votes cast, "which rejection so made as aforesaid" the statute declared "shall be final, unless appeal be taken within ten days to the probate court." The House of Representatives of the United States in case of Norris vs. Handley, (42d Congress,) refused to be governed by this statute, in so far as it made the decision of the board final. Upon this point the committee's report

says:

"In the opinion of the committee it is not competent for the legislature of a State to declare what shall or shall not be considered by the House of Representatives as evidence to show the actual vote cast in any district for a member of Congress, much less to declare that the decision of a board of county

canvassers, rejecting a given vote, shall estop the House from further inquiry. The fact, therefore, that no appeal was taken from the decision of the board of canvassers, rejecting the vote of Girard precinct, cannot preclude the House from going behind the returns and considering the effect of the evidence presented."

§ 370. Concerning the effect which should be given to the decision of a board invested by statute with power to hear proof of fraud, and reject votes, the committee in the same report used this language: "We have already seen that the statute of Alabama confers upon this board authority to revise the return of the vote of the several precincts, and, upon sufficient proof, to throw out such as in their judgment are illegal or fraudulent. Although this is an extraordinary, not to say a dangerous, power when placed in the hands of a board of this character, with such inadequate facilities for obtaining legal evidence and deciding upon questions of fraud, yet it is believed by the committee that the action of such a board under the statute in question, and in pursuance of the power conferred thereby, is to be regarded as prima facie correct, and to be allowed to stand as valid until shown by evidence to be illegal or unjust."

§ 371. In the report of the committee of elections in Gooding vs. Wilson, (42d Congress,) several important rules of evidence applicable to cases of contested elections were laid down, as follows:

"Evidence which might have been sufficient to put the voter to his explanation, if challenged at the polls, is not deemed sufficient to prove a vote illegal