or mistake in the official count. (Gooding vs. Wilson, 42d Congress.)

§ 441. Fraud, in the conduct of an election, may be committed by one or more of the officers thereof, or by other persons. If committed by persons not officers, it may be either with or without the knowledge or connivance of such officers. There is a difference between a fraud committed by officers or with their knowledge and connivance, and a fraud committed by other persons, in this: the former is ordinarily fatal to the return, while the latter is not fatal, unless it appear that it has changed or rendered doubtful the result. If an officer of the election is detected in a wilful and deliberate fraud upon the ballot box, the better opinion is that this will destroy the integrity of his official acts, even though the fraud discovered is not, of itself, sufficient to affect the result. (Ante, § 184. Judkins vs. Hill, 50 N, H., 104.) The reason of this rule is, that an officer who betrays his trust in one instance, is shown to be capable of the infamy of defrauding the electors, and his certificate is, therefore, good for nothing. If, for example, an election officer, having charge of a ballot box, prior to or during the canvass, is caught in the act of abstracting certain ballots, and substituting others, although the number shown to have been abstracted, be not sufficient to affect the result, yet no confidence can be placed in the contents of a ballot box, which has been in his custody. We repeat, therefore, the opinion expressed in a former chapter, that a wilful and deliberate fraud on the part of such an officer, being clearly proven, should destroy all confidence in his official acts, irrespective

of the question whether the fraud discovered is of itself sufficient to change the result. The party taking anything by an election conducted by such an officer, must prove his vote, by evidence other than the return.

§ 442. Fraud, in the conduct of an election, may be shown by circumstantial evidence. It is sometimes a difficult matter to decide whether misconduct on the part of election officers, is to be regarded as constituting fraud, or as only the result of carelessness, ignorance, or negligence. If, however, such misconduct has the effect to destroy the integrity of the returns, and avoid the prima facie character, which they ought to bear, such returns will be rejected, and other proof demanded of each vote relied on. And this is the rule concerning such misconduct, whether it be shown to have been fraudulent, that is to say, prompted by a corrupt purpose, or whether it arise from a reckless disregard of the law, or from ignorance of its requirements. In either case the effect may be to destroy the integrity of the returns. For example, in Covode vs. Foster, (2 Bartlett, 600,) a return was rejected, upon proof that a hat and a cigar box were used, instead of the regular ballet boxes; that they were placed in or near the window, through which the votes were received; that persons other than members of the board were permitted in the room where the votes were received, and were near the boxes, and were passing in and out at pleasure during the day; that there was great noise and confusion in the room; that whisky was kept in the room, and members of the board drank to intoxication; that challenges were

disregarded; and when the votes were counted, there were six ballots in the box over and above the number of names on the tally list. These facts, together with the further fact that one Speers acted as clerk without authority, and without being sworn, were regarded by the committee, and by the House as furnishing good ground for rejecting the return. But misconduct which does not amount to fraud, and by which no one is injured, does not vitiate the poll. [Dobyns vs. Wendon, 50 Ind., 298.]

§ 443. The fact that persons, other than members of the board of election officers, are allowed to be in the room with such officers when votes are being received and deposited, will not of itself and in the absence of any proof of misconduct on their part, be sufficient to invalidate the return; but the admission of such persons is decidedly improper, especially if the persons admitted be the partisans of any particular candidate or ticket, and the fact of their presence and misconduct may be shown as circumstances tending to invalidate the return. [Thompson vs. Ewing, 1 Brewster, 111. Covode vs. Foster, supra.]

§ 444. It is not a valid objection to an election, that illegal votes were received, if they did not change the majority. If, therefore, a number of legal voters withdraw from an election and decline to vote upon the ground that illegal votes are being received, they do so at their peril, and take their chances of being able afterwards to show that the number of such illegal votes was large enough to change the result. [First Parish &c. vs. Stearns, 21st, Pick. 148. Trustees &c. vs. Gibbs, 2 Cush. 39.]

§ 445. If an election is held according to law and a fair opportunity is afforded for all legal voters to participate, those who do not vote, are bound by the

result, (ib.) It has been held that if the majority expressly dissent, and do not vote, the election of the minority is good. (Oldknow vs. Wainwright, 1 Wm. Bl., 229.) And see Commonwealth vs. Read, 2 Ashmead, 261. Brightley's Election Cases 126.

§ 446. Votes must be cast in the manner provided by law. Under a statute requiring that the manner of voting shall be by ballot; votes given viva voce cannot be counted, and in the case of an election by a board of county commissioners, of a county Treasurer, it was held in Commonwealth vs. Read, supra, that the only lawful mode of voting under the statute of Pennsylvania, governing the election, was by ballot and that, inasmuch as the majority voted viva voce, the minority voting by ballot would elect, even it that minority consisted of but one member of the board. It seems, however, that in case of an election by a corporation, or a board composed of a definite and fixed number of persons, a quorum should vote. Where the elective body consists of an indefinite number of persons, the principal of Commonwealth vs. Read can be applied. Accordingly in State vs. Burder, (38 Mo., 450,) it was held that in the absence of any evidence to the contrary, it will be presumed that the voters voting at an election, were all the legal voters of the city, or that those who did not see fit to vote acquiesced in the action of those who did vote, and consequently are equally bound and concluded by the result.

§ 447. This doctrine, however, must be taken with some qualifications. If, for example, the election is held under such circumstances as to preclude the possibility that a majority of the persons entitled

to vote could have had the opportunity to do so, it is void, although held at the time and place provided by law. It was accordingly held, in a number of cases, arising in the southern States during the rebellion, that where the larger part of the district was at the time of the election, in the armed occupation of rebel forces, an election attempted to be held in a portion of the district not so occupied was void.

(Case of Upton, 1 Bartlett, 368.

§ 448. The true rule is this; if the opportunity to vote is given to all alike, and if those who abstain from voting do so, of their own fault or negligence, then those who do attend and vote, have the right to decide the result, but in a case where those who fail to vote constitute a large proportion of the voting population, and where they did not have the opportunity to vote, there can be no valid election. Elections in the south during the progress of the rebellion were accordingly held valid, where there was an opportunity for the great body of the electors to participate. (Flanders & Huhn, 1 Bartlett, 438. Case of Clements, do, 366.)

§ 449. Every circumstance which tends to show