stanter, and for bringing an election case to a prompt and speedy trial and determination, and it is this: The subject matter of the controversy is daily growing less, and of less importance and value. The office in question is usually for a short term of one or perhaps several years only, and if the "laws delays" are to be allowed in these as in other cases, the term would often expire before a decision could be reached. And if an amendment of a petition would necessarily result in a continuance, or in considerable delay, it ought not to be permitted, because it is better that he whose fault it is that the original petition is insufficient should suffer, than that an innocent party should be deprived of his right to a speedy trial. In such a case the furtherance of justice requires that leave to amend should be refused. See also Gibbons vs. Sheppard, 65 Pa. St. R., 20, 35. Mann vs. Cassiday, 1 Brewst., 32. Thompson vs. Ewing, ibid, 68, 97, 101.

§ 285a. When the statute of a State provides a mode for contesting an election, that mode must be followed. [Dickey vs. Reed, 78 Ill, 261.] And in Illinois the statutory proceeding is held to be to all intents and purposes a chancery proceeding. [Dale vs. Irwin, Ill., 170. State vs. Stewart, 26 Ohio State, 216.]

§ 286. Where an election district is composed of several sub-divisions or voting precincts, a failure of the officers of one of such sub-divisions to make a return, no matter from what cause, will not invalidate the election unless it be shown that the votes not returned would have changed the result. It was so held by the Supreme Court of New York, in ex parte, Heath and others, [3 Hill, 42,] which was a case involving the validity of an election of ward officers in the sixth ward of the City of New York.

The ward was composed of four districts, from three of which the returns were regular, but as to the remaining ward (the first) the inspectors certified thus: "It is impossible for us to declare what persons were by the greatest number of votes elected, by reason of lawless violence committed upon the inspectors of the first district, &c., and the dispersion of the ballots before they were counted, &c." There was no evidence to show that votes not returned from the first district would have changed the result as shown by the returns from the other three, and accordingly it was held that the persons receiving the highest number of votes as shown by the returns from the three districts, were entitled to qualify; and a mandamus was granted, commanding the Mayor to administer the oath of office to them. In the course of his opinion in the case, Cowan J. says: "In no case we are aware of has it ever been held that the accidental loss of the ballots in a single sub-division of an election district, even though it prevent a return, shall, of itself, defeat, or indeed detract from the election as it stands on the votes which are properly returned. Once admit the principle that the loss of a part of the votes out of the number which may or should be given at an election, avoids the whole, and it is difficult to conceive how a system of government so entirely elective as ours, could be carried on. That a part of the votes given are lost, is never allowed per se, even in a private corporate election, as a ground for setting the election aside. It is not enough to say the result is therefore uncertain. (Ex parte Murphy, 7th Cowan, 153.) Yet the contrary rule would be much more tolerated in the case of private corporations than in that of large municipal and civil divisions. To give

the loss any effect, it must at least be shown that without its happening the result would have been different." The People, ex rel, &c., vs. Vail, 20 Wend., 12.

§ 287. In all legislative bodies which have the power to judge as to the election and qualification of their own members the rule is well settled that when the right of the sitting member is called in question, the body will look beyond the certificate of the returning officers, and determine the question upon the actual merits. The certificate is prima facie evidence only in such a controversy. The rule is the same in the Courts, and in trials of contested election cases before a jury. [The People vs. Vail, 20 Wend., 12.] But it is, as elsewhere shown, equally well settled, that the returning board or officer whose duty it is to open returns, ascertain the result, and issue commissions, cannot go behind the returns. And if a party wishes to go behind the returns and set them aside, he must in his pleading make specific allegations, showing wherein they are false. [State ex rel vs. Townsley, 56 Mo., 107.]

§ 288. Under the statute of Pennsylvania, conferring jurisdiction upon the Court of Quarter Session, to hear and determine election contests, and making its decision final and conclusive, it was held that an issue to a jury could not be directed to try the question of an alleged fraud in an election. The chief reason given was that a trial by jury if conceded to one contestant, must be conceded to all, and that "delay must take place in preparing and setting down such an issue for trial; after trial of the most tedious and expensive kind the jury may disagree, (one dissenter from the rest being adequate to produce that result,) and their consequent discharge.

Another and another trial may follow with like results, until one of the parties weary with delay, or bankrupt in prosecuting his rights abandons them in despair," and by bills of exceptions and writs of error the proceedings might be still further prolonged. This would operate most unjustly to the contestant, if in the end it should appear that he was rightly entitled to the office. (Kneass' Case, 2 Parsons, 599. Brightley's Election Cases, 260.)

§ 289. The same point was decided in the same way, by the Supreme Court of Pennsylvania, in Ewing vs. Filley, 43 Pa. St. R., 389. And in that case the Court also held that an act providing for the trial of a case of contested election without the intervention of a jury, is not for that reason unconstitutional. "It is not," says Lowrie, C. J., in that case, "in the act of organization of the State, nor in the perpetuation of its organic succession, but in the administration of rights under the organization, that the constitution secures the trial by jury. The jury is the proper element in the determination of rights which need enforcement by means of the State organization, but there is a much larger popular element in our elections, the votes of all the people, and all our political practice shows that we have not considered a jury an essential means in deciding contested elections of public officers.

§ 290. The returns and other election papers though conclusive upon the canvassers, may be impeached upon a quo warranto, or other form of contested election. The very question to be determined in such a contest is frequently the truthfulness and reliability of the returns, poll books, &c., and the

duty of the tribunal trying the case, is to ascertain not who was returned as elected, but who was in fact elected. (People vs. Vail, 20 Wend., 12. Commonwealth vs. Commissioners, 5 Rawls., 77.) And in accordance with this rule it was decided in Howard vs. Shields, (16 Ohio, State Rep., 184,) that parol evidence is admissible, not only to impeach, but also to correct omissions in the poll books and tally sheets, and that these documents when so corrected are sufficient prima facie evidence of the result of the election. In that case the judges and clerks of the election had omitted to sign the poll books and tally papers at the proper place, and had also omitted to fill the blanks in the caption, or to state the aggregate number of the voters, and parol evidence was held to be admissible to correct these errors.

291. In the case last named it was also held that the tally sheet kept by the officers of the election, is competent evidence in an election contest to show the true state of the vote. It is good until impeached, and affords prima facie evidence of the And see

number of votes cast for each candidate.

also Powers vs. Reed, 19 Ohio State R., 189. The ballots themselves are, however, (when fully identified,) better evidence of the number of votes cast, and for whom cast, than the tally lists made from them by the officers of election. (People vs. Holden, 28 Cal., 123.) But unless the law has provided means for preserving and identifying the very ballots cast, and unless the law in that respect has been strictly pursued, the ballots may not afford evidence as reli able as the other election papers.

§ 292. It has been held that for the purpose of