(Election papers.) We are satisfied the court erred in rejecting the three perfect tally-sheets and their accompanying defective pollbooks; and also in refusing the defective poll-book and tally-sheet, so sustained by parol evidence. Of course, when admitted, they will be subject to impeachment by counter-testimony of the contestant; what would have been the final legitimate result, had they been so admitted, it is not for us to say; it is enough to know, as the record shows, that if not so impeached, or overcome by other evidence, their effect would have been to change the result, and that, therefore, the error was one apparently to the prejudice of the plaintiff in error. The judgment must, therefore, be reversed and the cause remanded for further proceedings. Judgment reversed. It is well settled, that the election papers, though conclusive upon the return judges or canvassers, may be impeached, on a quo warranto or contested election, where the question is, which candidate actually received the greater number of legal votes. People v. Vail, 20 Wend. 12; Commonwealth v. County Commissioners, 5 Rawle 77. They are to be considered as primâ facie true and correct, but may be vitiated by faults and irregularities; the design of the law in requiring them to be filed by the officers of the election, is to afford the highest evidence by which the true vote of every elector may be ascertained; but, like all other documentary evidence, they are subject to be impeached by proof aliunde. Mann v. Cassidy, 1 Brewst. 12, 48. Where the poll-books, tally-sheets and returns substantially comply with the statutes, and all formal mistakes and omissions are supplied by the other evidence in the case, and these, when taken together, clearly tend to show the result of the election, they cannot be properly excluded from the consideration of the court. Powers v. Reed, 19 Ohio St. R. 189. Even if it be shown that they were left, for some days, in an exposed condition, and that they have been in some respects altered, they are admissible in evidence, their fairness and alteration being matters for investigation by the court and jury. State v. Adams, 2 Stew. 231 (ante 288-9). And unless their loss be proved, or (Election papers.) their non-production accounted for, parol evidence of their contents cannot be received. Olive r. O'Riley, Minor 410; Sinks v. Reese, 19 Ohio St. R. 306. The court, however, on the hearing of a contested election, will not take notice of the papers on file, unless they have been referred and made part of the petition and record in the cause. Carpenter's Case, 2 Pars. 537. See United States v. Souders, 2 Abbott U. S. Rep. 456. For the purpose of showing that a person voted, the poll-list is admissible in evidence, though not signed by the inspectors or clerk, having no heading to denote its character, and never having been filed in the clerk's office. People v. Pease, 27 N. Y. 45. If the register or poll-list, when produced, contain, upon its face, after the list of names written in ink, other names in pencil, followed by the word "sworn," it is evidence that these latter were not registered voters, but that their names had been added at the polls. State v. Hilmantel, 23 Wis. 422. It may be shown by parol, that ballots cast for a person by the initials only of his name, or by an abbreviation of his Christian name, were intended for one of the candidates. People v. Ferguson, 8 Cow. 102; People v. Cook, 8 N. Y. 67. In Michigan, however, it was held, that a ballot cast for J. A. Dyer could not be counted for James A. Dyer, though the use of a common and well-understood abbreviation would not vitiate the ballot. People v. Tisdale, 1 Doug. 59; People v. Higgins, 3 Mich. 233; People v. Cicott, 16 Mich. 283. (But see ante 258-68.) The ballots themselves are better evidence of the number of votes cast, and for whom cast, than the tally-list made from them by the officers of the election. People v. Holden, 28 Cal. 123. The general rule requiring the production of the best evidence of which the case in its nature is susceptible, applies in respect to the contents of poll-books, tally-sheets, and the number and contents of ballots cast at an election, where the production of the same is attainable. Sinks v. Reese, 19 Ohio St. R. 306. 385 PEOPLE V. PEASE. In the Court of Appeals of New York. JUNE TERM 1863. (REPORTED 27 NEW YORK 45.) [Evidence in contested election cases.] The question whether a voter was or was not duly qualified, is not concluded by the decision of the inspectors; it is open to examination, in subsequent proceedings, upon any competent evidence. It seems, that the declarations of a voter, though hearsay evidence, are competent to prove his want of qualification. A voter, called as a witness, may be asked for whom he voted, and if he decline or be unable to state, circumstantial evidence may be received to prove the fact; and he may be asked for whom he intended to vote, as one of the circumstances bearing on the question. For the purpose of showing that a person voted, the poll-list kept at the election is admissible, though not signed by the inspectors or clerks, having no heading denoting its character, and never having been filed in the town-clerk's office. Where the evidence is, that one who voted, was alien born, the presumption is, that he voted legally, and was duly naturalized; aliter, if there be prima facie evidence that he had not become a citizen by naturalization or otherwise, in such case, the burden of proving his naturalization is cast on the party desiring to retain the vote. This was an action in the nature of a quo warranto, to try the title to the office of county treasurer of the county of Lewis. The defendant had a verdict and judgment in his favor, which was affirmed at the general term, and from that affirmance the plaintiff appealed. The facts of the case are sufficiently stated in the opinions of the judges. Starbuck, for the appellant. Kernan, for the respondent. DAVIES, J. The charge of the judge at the trial, and the exception taken by the relator, present the main ques (Evidence in contested election cases.) tion in controversy in this action, and the only one of importance demanding consideration. It is certainly a question far-reaching in the results which must follow its determination, for, upon its just decision, must depend the value and purity of the elective franchise. When we reflect that, under the present constitutional provisions in this state, we not only elect all legislative officers, but most of our judicial, executive and administrative, it cannot fail to be seen, how vital it is to the success and permanence of our institutions, that the voice and will thus expressed be those of the persons constitutionally qualified thus to speak. It is of but little moment that constitutional qualifications, as preliminary to the exercise of the elective franchise, are prescribed, and that those thus entitled exercise that right, inestimable to freemen, if persons having no such qualifications may exercise the same right, and thus thwart and subvert the will of the legal voters. Such, certainly, could never have been the intent of the framers of our system of government; and such results, it has never been heretofore supposed, were to be anticipated from our elective system. By the fifth section of the first article of the constitution of the United States, each house is declared to be the judge of the election returns and qualifications of its own members. A similar provision, as applicable to our state legislature, is found in the constitution of this state. Art. III., sect. 10. And a like provision in most, if not all, of the charters of the various municipal corporations of this state, will be found, as applicable to the election of the members of the common councils thereof. So far as I have been able to discover, the rule is universal in all legislative bodies, to scrutinize the qualifications of the voters, and to deduct or disallow all votes cast for any candidate by non-qualified voters. This rule seems to be well established in such cases, and it is not perceived, that any substantial reason can be suggested, why a different (Evidence in contested election cases.) one should obtain in a civil suit or proceeding to determine the right of an individual to a particular office. This rule was distinctly recognised and affirmed by the house of representatives, in the election case of Vallandigham v. Campbell, 41 Cong. Globe 2317. In the extended debate had upon that case, all the members conceded that the votes of illegal or non-qualified electors must be deducted or disallowed; and the main point of difference, in the discussion, was, as to the manner of establishing such disqualification. It was contended by some members, that it could only be shown by the oath of the voter himself, whilst others maintained, that hearsay evidence of such disqualification was admissible. Numerous precedents are cited at page 2320, fully sanctioning the doctrine, that hearsay evidence can be received; at page 2319, a case is cited, where, before the election committee of the house of commons, in England, Mr. Maule objected that the declarations of one John Nowlan were not evidence against the sitting member; Mr. Thessiger (since Lord Chancellor, now Lord Chelmsford), in reply, said: "In the Southampton case, it was held, evidence may be given of the declaration of a person, even after voting, though it may tend to affect him with penal consequences; in the Ripon case, the voter had stated to two persons, in the months of June and July 1832, that he had no vote, and that his aunt was tenant of the house; the election took place in the beginning of 1833, and the declarations were held admissible. A voter who has voted for the sitting member, is always considered as a party, and it is on that ground, that his declarations are admissible; the question is always considered to be between the voter and the party questioning his vote, and not merely between the sitting member and the petitioner." The committee resolved that the evidence should be received. The constitution of this state declares who may exercise the elective franchise; those entitled to vote at any election are, every male citizen of the age of 21 years, who |