ny of this character is this: it is not at all likely to be either true or trustworthy.

"The rule that admits secondary evidence when the best cannot be had only admits evidence which can be relied on to prove the fact, as sworn copies when an original is lost, or the testimony of a witness to the contents of a lost instrument. Hearsay evidence is not admitted in such cases, and is only admitted in cases where hearsay evidence is, in the ordinary experience of mankind, found to be generally correct, as in matters of pedigree and the like. But a man who is so anxious to conceal how he voted as to refuse to disclose it on oath, even when the disclosure is demanded in the interest of public justice, and who is presumed to have voted fraudulently-for otherwise, in most cases, the inquiry is of no consequence-would be quite as likely to have made false statements on the subject, if he had made any. To permit such statements to be received to overcome the judgment of the election officers, who admit the vote publicly, in the face of a challenge, and with the right to scrutinize the voter, would seem to be exceedingly dangerous."

§ 272. In Newland vs. Graham, (1 Bartlett, 5,) the declarations of voters made after the election, of their having voted for the sitting member, were held inadmissible, and were excluded, although it was shown that, by the statute of North Carolina, where the election took place, voters were not compellable to give evidence for whom they voted. The Committee did not in their report state the ground of their decision, but we may fairly presume that it was held that an illegal voter could not refuse to answer

for whom he cast his vote, and shield himself under the statute made to preserve the secrecy of an honest ballot, and that, therefore, since all such persons can be compelled to state for whom they voted, they should be called as witnesses, and their declarations not under oath, should not be received.

§ 273. And again in the recent case of Gilliland vs. Schuyler, (9 Kansas, 569,) it was held that statements of third parties as to the number of times. and the names under which they voted was hearsay and incompetent. The Court said: "It is the testimony of what other persons told the witness, persons not parties to the suit, so that their admissions could be receivable. These declarations were not made at the polls by persons conducting the election, and so as to make part of the res gestæ; nor do they accompany a principal fact, so as to qualify or explain it." The Court also says: "We have examined the cases of People vs. Pease, 27 N. Y., 45, State vs. Olin, 23 Wis., 319, and the note to 3 McCord, 230, and so far as they enunciate any principle contrary to the doctrine here announced we disapprove them."

§ 274. Where the statute required that the return of the vote of each town should consist of a copy of the town record, signed by the selectmen and attested by the clerk, it was held that a certificate which did not on its face purport to be a copy of the town record, and which was attested by James N. Tilton, without anything to show that he was town clerk, was void, and could not be received by the canvassing board. (Luce vs. Mayhew et. al., 13 Gray, Mass. 83.) And of course if the proper officers

omit altogether to sign a return, though it may be otherwise formal, it is void, and proves nothing. (Barnes vs. Adams, 2 Bartlett, 771.)

§ 275. Where the statute provides for a list of voters to be prepared by the selectmen of a town and used at the election, such list is to be regarded as an official document, and is itself the best evidence upon the question whether the name of a particular voter is upon it. It is therefore not competent for a party to show by parol that his name was on such voting list, without first giving notice to produce the list. (Harris vs. Granville, Whitcomb, et. al., 4 Gray, Mass., 433.) And it was further held in the same case that the fact that a person's name is on the voting list, is only prima facie evidence of his right to vote, and the selectmen may strike off the name and reject the vote, if they can prove that he was not entitled to vote. See also Humphrey vs. Clingman, 5 Metcalf, 168.

§ 276. A statutory provision requiring notice of contest to be given within a given time, from the date of the official count, or from the declaration of the result, or the issuing of the certificate of election or the like, is peremptory, and the time cannot be enlarged. [Bowen vs. Hixon, 45 Mo., 340.] "It has always been held," says the Court in that case, "that where the jurisdiction of a Court is made to depend upon the time, either of giving notice or of taking appeals, the requirement is peremptory. And see also Castello vs. St. Louis Circuit Court, 28 Mo., 278. And it may be added that there is the strongest reason for enforcing this rule most rigidly in cases of contested election, because promptness

in commencing and prosecuting the proceedings, is of the utmost importance to the end, that a decision may be reached before the term has wholly, or in great part, expired.

§ 277. Where, as is the case in several of the States, the statute provides a mode of preserving the identical ballots cast at an election, for the purpose of being used as evidence in case of contest, such statute, and particularly those provisions which provide for the safe keeping of such ballots, must be followed with great care. The danger that after the count is made known, (especially if the vote is very close,) the ballots may be tampered with, is so great, that no opportunity for such tampering can be permitted. Such ballots, in order to be received in evidence, must have remained in the custody of the proper officers of the law, from the time of the original official count, until they are produced before the proper court or officer, and if it appear that they have been handled by unauthorized persons, or that they have been left in an exposed and improper place, they cannot be offered to overcome the official count. See Gooding. vs. Wilson, [42d Congress.] Butler vs. Lehman, [1 Bartlett, 354.] Kline vs. Verree, [ibid, page 381.] In Butler vs. Lehman the House of Representatives, after a full discussion, sustained the minority of the committee in rejecting a recount, upon the ground that the ballot boxes had not been so kept as to rebut a reasonable presumption, that they had been tampered with. Upon this subject see Hudson vs. Salmon, 19 Kas., 177,

§ 278. In California there was a statute requiring the preservation of the ballots in the clerk's office for six months. In the same act was a provision re

quiring the preservation of the poll list and tally paper, with the certificates of the officers attached. Under this statute the case of People vs. Holden, 28th California, 123, arose. The defendant in that case was returned as elected county judge by five majority, and the relator as defeated by that number. Upon an inspection of the ballots cast at one of the precincts and preserved in the clerk's office, under the law, it appeared that thirty-one democratic tickets had been cast, and that the name of Holden was on all of them except two, from which as appeared upon inspection, his name had been torn off. Several ballots containing Holden's name having been thrown out for other causes, the case turned upon the two ballots, from which his name had been torn, and the question was whether the name was torn off after, or before, the ballot was placed in the box. There was no evidence upon this point and the court held, that the presumption was that the ticket had not been mutilated, and that the name had been torn off by the voter before voting. The evidence consisted of the certified returns and poll list, on the one hand, and the ballots on the other. Here was a case of presumption against presumption. The law presumed that the returns were correct, and it also presumed that the ballots had not been tampered with. The temptation to tear the name of Holden from a few tickets, and thus change the result, was unquestionably very great, while it could hardly have been supposed by the officers, who certified the township returns, that to change two or three votes would change the result. The soundness of the ruling is seriously doubted, by Mr.