It was

list were recorded in alphabetical order. a clear case of fraud, and the only question considered was, whether there was any proof upon which the poll could be purged, and the legal votes separated from the illegal. The Court refused to allow any of the votes cast at the precinct in question to be counted, on the ground that there was no sufficient proof of any legal vote whatever. It was shown that there were over four hundred persons in the precinct who were entitled to vote, but there was no proof outside of the return, that any of these voted, or as to how they voted. The Court properly rejected the return as utterly unreliable and unworthy of credit. The return was, therefore, not admissible in evidence for any purpose, and it was the duty of respondent to have shown the legal vote by other evidence. There was no proof upon which the Court could purge the return and separate the good votes from the bad, and therefore the whole poll was necessarily thrown out.

§ 457. Naturalization certificates fraudulently issued by the clerk of a Court, without the order of the Court itself, are void, and although regular on their face, confer no right upon the holders, and their fraudulent character may, on the trial of a contested election case, be shown by parol. (Ante § 21.) But an election officer cannot go behind the certificate of naturalization. (Ante § 35.) Such an officer may, however, act upon the voter's admission of facts, which, if true, avoid his certificate. (Ante § 95.) As to punishment of fraudulent registration for the purpose of voting for a member of Congress, see ante § 309. As to effect of a fraud commit

As to rem

ted by election officers, which does not, of itself, affect the result, see ante § 184, § 185. edy for fraud, see ante § 340, note (f.) As to what frauds will vitiate a return, see ante § 365, 366, 386, 387, 391, 392, 393.

§ 458. The remedy for frauds committed in the conduct of an election, is not always by a contest in a proceeding at law. The rule is, that if the statute or the common law will afford adequate relief, equity will not interfere. Where the election is for the choice of one or more public officers, there is always a remedy at law, and a court of equity will not take jurisdiction. Cases may, however, arise which do not present the question which of two persons is entitled to an office, and which are in their nature unlike an ordinary contest. For example, a vote of the people of a county may be taken upon the question of the location or removal of a county seat; or upon the question of subscribing to the capital stock of a railroad company; or upon subscribing or appropriating money to aid any work of internal improvement; or by the people of a city or town, upon the question of adopting a charter. And it may happen that the modes of proceeding provided by statute, or by the common law, for contesting elections, or trying the title to an office, are altogether inapplicable to the determination of questions of fraud, accident or mistake, in the conduct of such elections as these. In all such cases equity will afford relief. Whether the proper remedy is by a bill to enjoin the canvassing of the vote cast at such an election, on the ground of fraud, or by bill filed after the result is declared to set it aside, and enjoin

all proceedings under it, has been made a question, but the better opinion is that the latter is the proper remedy. The canvassing of the vote concludes nothing. The validity of the election, and of every vote cast, remains an open question, which may be subsequently tried by any court of competent authority. Besides, the result cannot be legally known until the vote has been canvassed. Proceedings therefore, to test the validity and bona fides of an election, should be instituted after the canvass is made, and the result announced, and this rule applies as well to such cases as must, for the reasons stated above, be brought in equity, as to those in which the remedy is at law. As to remedy in equity, see People vs. Wiant, 48 Ill., 263. Boren vs. Smith, 47 Ill., 485.

CHAPTER X.

PROSECUTIONS FOR VIOLATION OF ELECTION LAWS.

§ 459. Upon an indictment under the statute of Massachusetts, for giving false answers to the selectmen who presided at a meeting for the election of officers, or for wilfully voting at such meeting without being qualified, it is not necessary to prove that the selectmen were legally chosen and qualified; it is sufficient if it be proved that they were acting as selectmen. [Commonwealth vs. Shaw, 7 Metcalf, (Mass.,) 52.]

§ 460. It is no cause for arresting judgment, on an indictment for giving false answers to selectmen, and for voting wilfully without being qualified, for Governor, Lieutenant Governor, and Senators, for the district of M., that it is not alleged that the district of M. is in the commonwealth. (16.)

§ 461. An allegation in an indictment for illegal voting, that a meeting of the inhabitants of the town of A. was duly holden, is proved by evidence that a meeting of the inhabitants of the town of A., who were qualified to vote, was duly holden. (Ib.)

§ 462. An indictment charged that the defendant gave certain false answers to the selectmen, and that such answers were given by defendant with the fraudulent intent to procure his name to be placed on the list of voters, and to obtain permission to vote. The evidence was that the defendant's name was on the list of voters when he gave the false answers. Held, that there was a material variance between the allegation and the proof. (16.)

§ 463. It has been held, that if a party indicted under the statute of Massachusetts for wilfully giving in a vote at an election, knowing himself not to be a qualified voter, admits on his trial that he voted at the election, it is equivalent to an admission that he voted wilfully. (Commonwealth vs. Bradford, 9th Metcalfe, 268.) But this could hardly be true, if the term wilfully was here used in the ordinary sense as implying a corrupt or unlawful purpose. Such a purpose could not be inferred from the mere fact of voting. It was not, however, in this sense, that the term was used by the Court, but as the judge delivering the opinion declares, it was employed as mean

ing only "designedly, purposely, with an intent to claim and exercise the right of suffrage."

§ 464. On the trial of a party indicted for wilfully giving in a vote at an election, knowing himself not to be a qualified voter, when the only question is whether he had resided in the town where he voted six months next preceding the election, evidence that he had resided in another town until within seven months of the election, does not put upon him the burden of showing that he had changed his residence, but the burden of proof to support the indictment remains on the commonwealth. (b.)

§ 465. Evidence that a party consulted counsel as to his right to vote, and submitted to them the facts of his case, and was advised by them that he had the right, is admissible in his favor, on the trial of an indictment against him for wilfully voting, knowing himself not to be a qualified voter, but is not conclusive that he had not such knowledge. (16.)

And a person indicted for voting while yet a minor may show in defense that he voted under an honest belief, induced by information derived from parents, relatives or acquaintances having knowledge of the date of his birth, that he had attained the requisite age. (Gordon vs. State, 52 Ala., 308.)

§ 466. In an indictment, under the statute of Pennsylvania, providing for the punishment of any officer of election who shall "knowingly reject the vote of a qualified citizen," it was held that the officer could not be held criminally liable for a mere mistake of judgment, but only for a wilful disregard of duty. It was also held that the presumptions are in favor of the officer, the law presuming that he has acted conscientiously, and not corruptly, until the contrary appears. [Commonwealth vs. Lee, 1 Brewst. 273. Cushing's Election Cases, 98.]