People v. Cook | Cases | Westlaw

If inspectors of elections come into office by color of title, that is sufficient to constitute them officers de facto. And if they are officers de facto, their omission to take the oath prescribed by the statute will not invalidate an election held by them.

Acts done by those who are officers de facto are good and valid as regards the public, and third persons who have an interest in their acts; and their title to the office cannot be inquired into collaterally. This doctrine has been applied to cases where the whole official duty of the officer, in its nature, consists in the performance of a single act.

But the mere claim to be a public officer, and the performance of a single act, will not, it seems, constitute an individual an officer de facto. There must be some color of an election or appointment, or such an exercise of the office, and an acquiescence on the part of the public, as would afford a reasonable presumption of at least a colorable election or appointment.

It is a general rule, in relation to public officers, that they may establish their official character by proving that they are generally reputed to be, and have acted as, such officers, without producing their commission, or other evidence of their appointment.

The certificate of a town clerk, showing that particular persons were declared duly elected inspectors of elections, and that no others have been elected in their stead; and that no appointment of any others has been filed in his office, is not evidence for any purpose.

Statutes directing the mode of proceeding by public officers are directory, and a strict compliance with their provisions is not essential to the validity of the proceedings, unless it be so declared in the statute.

Within this principle, where a statute directs a public officer to do a thing within a certain time, without any negative words restraining him from doing it afterwards, the naming the time will be regarded as directory merely, and not as a limitation of his authority.

This rule has been very steadfastly adhered to, by the courts, in all cases where certain acts are directed to be done, by public officers, within a stated time, and in a particular manner, when those acts are of a public character, and concern the public interests, or when the rights of third persons are concerned. Per MASON, P. J.

The rule should be applied to inspectors of elections, and to omissions, by them, to comply with the requirements of a statute, occurring through ignorance or inadvertence.

The fact that inspectors of elections, and the clerks, are sworn, not upon the bible, but upon a book of a different description, will not invalidate the election.

Nor will the fact that the inspectors proceeded with the election, for a short time, with only one clerk, render the election void, in the absence of any evidence of fraud; nor that a person who was not a member of the board, or *260 a clerk, sat by the table, and kept a list of the voters, and copied some from the poll list; nor that while two of the inspectors were gone to their breakfast, the remaining inspector appointed another person an inspector, and administered to him the official oath; the two proceeding to act as inspectors, during the absence of the others; nor that the person thus appointed assisted while the other inspectors were eating their dinner, in the same room where the polls were held, and that he assisted by the request of the others, for a short time, while all three of them were present; nor that the polls were held open some ten or fifteen minutes after sundown, and that a few votes were received after that time; nor that the certificate of the canvass was made in a private room, or that it was not made immediately.

Where, upon the trial of an action in the nature of a quo warranto, it is not shown or alledged that any illegal votes were received, or any legal votes were rejected, at the election at which the defendant claims to have been elected; and there is no evidence of fraud, in respect to the conducting of the poll, or canvassing the votes; but on the contrary it appears by the evidence of the inspectors of elections that there was no intentional irregularity, or wrong, in any part of the proceeedings, the judge is right in refusing to submit the question of fraud to the jury.

A certificate of the appointment of persons as inspectors of elections, proved by the town clerk to be in the handwriting of his predecessor in office, and to have been taken from the files of the town clerk's office and brought to court, and which paper is signed by the clerk, supervisor, and a justice of the town, and filed on the back in the handwriting of the former town clerk, is the best evidence of the appointment of such inspectors, and is sufficiently proved.

Whether such certificate is filed on the day of the election, or afterwards, is immaterial; the statute being silent as to the time of filing papers of that nature.

The fact that a board of canvassers proceed for a time, in receiving votes, without clerks--one of the inspectors acting as such, in consequence of their inability to procure suitable clerks--will not invalidate the election.

Nor will the fact that, during a part of the time, there were four inspectors acting at the polls, and that the returns were signed by four--although an irregularity--affect the election.

In an action to determine the right to an office, the court and jury may look beyond the returns, and even beyond the ballot boxes, if necessary, to ascertain the truth. It may therefore receive evidence as to the intention of the voters.

It is immaterial how many names a ballot contains, if it does not contain more names for the same officer than there are officers to be elected, at the election. Accordingly, where a ballot for state officers, at a general election, was correct in form, and contained no more names than there were persons *261 to be chosen, but there was at the bottom, “For county judge, E. G;” Held, that this did not render the ballot void.

On the trial of an action in the nature of a quo warranto, to determine the right to an office, where the question was whether votes, given for “B. C. W. jun.” and “B. W.” were intended to be given for, and should be allowed to B. W. jun., and the evidence, unexplained and undisputed, concurred to identify B. W. jun. as the person for whom the votes were intended, and to establish the intention of the electors who voted those ballots to vote for him, and there was no disputed fact for a jury to find, upon that branch of the case; it being wholly a matter of inference, or legal intent, to be drawn from undisputed facts; Held, that the judge was right in refusing to submit the question to the jury.

The addition of “Junior” to a name, is mere matter of description, and forms no part of the name.

Neither is a middle letter, between the christian and surname, any part of the name; for the law knows of only one christian name. And where it appears that a middle letter was inserted in a name, upon a ballot, by mistake, it may be rejected.

The duties of inspectors of elections are partly judicial and partly ministerial. In determining whether ballots were intended for a given candidate, or not, they act in a judicial capacity; and unless their determination is impeached, by some legitimate evidence, it must be allowed to stand.

The fact that voters, challenged at an election, are, by mistake sworn upon a book other than the bible, both they and the inspectors supposing it to be a bible, will not render the election invalid. The most that can be claimed, in such a case, is that the illegal votes should be rejected.

Where the poll lists disagree with each other, and the inspectors draw out enough votes to reduce the ballot to the lowest poll list, this, although an irregularity, will not invalidate the election.

The omissions of officers conducting elections, through negligence, mistake, or inadvertence, to comply with all the directions of the statute, ought not to be allowed to disfranchise the electors.

The proper rule upon this subject is not to permit such omissions, whether they are the result of negligence, ignorance, mistake or fraud, to invalidate the election, whenever, by going behind the returns, the canvass, or even the ballot boxes, the true state of the canvass or ballot can be obtained, and the expressed will of the electors ascertained.

THIS was an action in the nature of a quo warranto, brought for the purpose of testing the right of the defendant to the office of treasurer of the state. The complaint was served on the 1st day of January, 1852. It alledged that the office of state treasurer had been and still was a public office of great trust and pre-eminence, and that the defendant, James M. Cook, without *262 any legal warrant, authority or right whatsoever, had, for the space of five hours and more, last past, and since the first day of January, 1852, held, used and executed the said office of treasurer of the state of New-York, and still did hold, use and execute the same, and without any legal warrant or authority, had claimed, used, received and enjoyed all the rights, franchises, fees and emoluments belonging or appertaining to the said office, which rights and franchises, he, the said James M. Cook, had usurped and unlawfully held and exercised, and still did unlawfully hold and execute. That Benjamin Welch, jr., of the county of Erie, was rightfully entitled to the said office of treasurer, and to all the rights, franchises and emoluments thereof, and had been so entitled from and since the first day of January, 1852; and in order to state and set forth the right and title of the said Benjamin Welch, jr. thereto, and that the said James M. Cook had no right or title thereto, the plaintiffs further stated and alledged that, at a general election held throughout the state of New-York, according to the constitution and laws thereof, on Tuesday, the fourth day of November, in the year 1851, for the election, among several other officers of the state, of a treasurer of the said state, to hold his office for two years, commencing on the first day of January, 1852, he, the said Benjamin Welch, jr. was, by the greatest number of votes given at the said election for treasurer of the said state, duly elected and chosen such treasurer, for the term aforesaid. Wherefore the said plaintiffs prayed judgment, that the defendant had usurped and unlawfully held and exercised the said office of treasurer of the state of New-York, and the rights and franchises appertaining thereto, since the day aforesaid, and still did so unlawfully hold and exercise the same, and that he be ousted and removed therefrom; and further judgment, that the said Benjamin Welch, jr. was entitled to the said office, and the rights, franchises and fees thereof, and had been so entitled since the day aforesaid; and that the defendant should pay to the plaintiffs the damages, costs and expenses in this action.

It was stipulated between the parties that the defendant might, under a general denial of the allegations of the complaint, *263 give in evidence upon the trial any matter which could be proved, if set up specially in the answer and put in issue or avoided by the reply, upon giving written notice ten days before the circuit for which the cause should be noticed for trial.

The defendant, by his answer, denied that he had usurped or unlawfully held, used, or occupied the office of treasurer; or had claimed, received, or enjoyed the fees and emoluments appertaining thereto, without legal authority, warrant, or right. But on the contrary he alledged that, at a general election held throughout the state, pursuant to the constitution and laws thereof, on Tuesday, the fourth day of November, 1851, for the election, among several other officers, of a treasurer of the said state, to hold his office for two years, commencing on the first day of January, in the year 1852, the defendant was duly elected to the said office of treasurer; he having received the greatest number of votes; and having been declared by the board of state canvassers duly elected to the said office. That a certificate of their determination was duly made and signed by the said board, and recorded in the office of the secretary of state; that on the 13th of December, 1851, the secretary of state transmitted to the defendant a copy of the said certificate. And that he, the defendant, thereupon, on the 15th day of December, 1851, gave the security required by law, and on the 31st day of the same month, took and subscribed the oath of office required by the constitution and laws of the state.

And the defendant further alledged, on his information and belief, that at the aforesaid general election, the greatest number of votes duly given by the qualified electors, who voted for any person for the office of treasurer of said state, were given for him, the said defendant, for such treasurer. By virtue whereof, and of the proceedings, canvassers' statements and certificates thereinbefore stated, and by that warrant he, the defendant, as he was informed and believed, became and was, on the first day of January, 1852, and from thence continually had been, and still was, treasurer of the said state; and by that warrant he, the defendant, for and during the time specified in the said complaint, and ever since, had held, used and executed the said office *264 of treasurer of the said state, and still did use, hold and execute the same; and as he was informed and believed, it was lawful for him so to do.

Under the stipulation between the parties, the defendant served a notice with his answer, that on the trial of the cause he would give in evidence the following facts, viz: that at the general election held in this state on the fourth day of November, 1851, the irregularities hereinafter mentioned occurred, affecting the choice of a state treasurer. First. That in the first election district of the first ward of the city of New-York, the inspectors of election, or the persons who acted as such, did not take and had not, at the time of said election, taken their oath of office. Second. That in the second election district of the city of Williamsburg, the election polls were not opened until 8 o'clock, A. M., and long after sunrise; that, in consequence of such delay, a large number of the qualified electors of the said district left the said polls under the impression and belief that no election would be held in the said district, and not being informed of the polls being opened, did not vote at the said election; that no clerk was sworn in, or appointed, until 9 o'clock; that only one clerk acted until half past 9 o'clock, and only one poll list was kept up to that time; that three persons were sworn in by the town clerk, and acted as inspectors of election, who had not been elected or appointed as such inspectors; that afterwards, and about half past 10 o'clock, A. M., two other persons who had been elected inspectors appeared, and, with the three persons aforesaid, acted as inspectors during the remainder of the day; that after the polls were closed, another person was sworn in as an inspector of election, and assisted in canvassing the votes, in connection with the five persons aforesaid; that the poll lists did not agree by fifty votes or more, and were not made to agree; that the poll list having the smallest number of names on it was taken as correct, and a sufficient number of ballots was drawn from the box to make the number therein agree with said lists; that the inspectors divided themselves into two sets of canvassers; that part of the inspectors canvassed part of the ballots, and part canvassed *265 another; that the inspectors adjourned the canvass and proceeded to the town clerk's office, some distance from the place of holding said election, to make out the canvass from the poll lists and from memoranda made by them; that no regular or legally appointed inspectors signed the returns; that no record of challenged votes was kept or returned to the town clerk's office. Third. That the returns from district No. 3, in the town of Cattskill, were improperly rejected by the county canvassers. Fourth. That the inspectors of elections in the western district of the first ward of the city of Buffalo, were illegally sworn in upon Watts' Psalms and Hymns, and not upon the Bible; and that with full knowledge of the fact, the inspectors swore voters on the same book, viz. Watts' Psalms and Hymns, and not on the Bible; such voters also having full knowledge of the fact that the oaths were administered on the said book, and without having desired to be sworn without the use of the Bible. Fifth. That in the town of De Peyster, St. Lawrence county, the inspectors of election were not sworn in at all; or, if at all, not until after a large number of votes had been given; and that there was but one clerk of the polls, and he was not sworn in any form. Sixth. That in the town of Greenbush, Rensselaer county, polls were held at what purported to be a third election district, which district was never legally formed. Seventh. That in the county of Herkimer, the ballots for state officers contained also the names of persons voted for as county judge, and the names of persons voted for to fill other offices, which by law could not be placed upon the ballots for state officers, and were required by law to be placed on other ballots, and that a large number of such ballots for state officers, containing the name of Benjamin Welch, jr. for state treasurer, to the amount of at least five hundred, were illegally canvassed and allowed to him by the county canvassers of said county. That by reason of these irregularities, a large number of votes, in several instances above mentioned, which should have been allowed to James M. Cook, were not allowed to him; and that in other instances, above mentioned, a large number of *266 votes were allowed to Benjamin Welch, jr. mentioned in the complaint, which ought not to have been allowed to him, &c.

The plaintiff put in a reply, in which issue was taken upon most of the allegations of sworn matter in the answer. And they averred that the board of county canvassers of the county of Essex did not estimate the votes given for the office of treasurer, at the election aforesaid, in the second election district, in the town of Chesterfield, in the county of Essex; nor did they, in their statement of the votes of said county made by them, include or allow therein the votes given at said election, in that district, for the office of treasurer. And that a large number of votes were given at the said election, in said district, for Benjamin Welch, jun., for said office, and exceeding those given for any other person, for said office, by at least thirty votes. Nor did the board of county canvassers of the city and county of New-York estimate the votes given for the office of treasurer, at the election aforesaid, in the second election district, in the fourteenth ward of the city and county of New-York, nor did they, in their statement of the votes of said city and county, made by them, include or allow therein the votes given at said election, in said district, for the office of treasurer; and that a large number of votes were given in said district for Benjamin Welch, jun., for said office, and exceeding those given for any other person, for said office, by at least two hundred and seventy votes. And the plaintiffs denied that the statements alledged in the answer, to have been made by the board of county canvassers, of the several counties, were correct.

And the plaintiffs stated on their information and belief, that the proceedings of the board of state canvassers, alledged and set forth, in the answer of the defendant and of the secretary of state, and of the defendant based thereon, were imperfect, irregular, defective, erroneous and void, and that they did not confer upon the defendant any right or title to said office of treasurer, in many respects, and among others, in that the said board of state canvassers did not include, in their statement and certificate, the votes given for treasurer, in the second election district of the fourteenth ward of the city of New-York; *267 nor did the said board of state canvassers include, in their statement and certificate, the votes given for treasurer, at said election, in the second election district of the town of Chesterfield, in the county of Essex; nor did they include, in their statement and certificate, the following votes cast in their respective counties, hereinafter mentioned, each and every one of which votes were, by the electors casting the same, intended for the said Benjamin Welch, jr. namely: one vote for B. Welch, in the county of Chenango; sixty-eight votes for Benjamin Welch, in the county of Chemung; one vote for Benjamin Welch, in the county of Kings; one vote in the county of Livingston, for B. J. Welch, and one vote in the same county for B. Welch; one vote in the city of New-York for B. Welch; thirty-two votes for Benjamin C. Welch, jr., in the county of Ontario; one vote, in the county of Saratoga, for Benjamin Welch; and forty-seven votes for Benjamin Welch, in the county of Tompkins. And the plaintiffs further stated and averred, that all the votes so given, and intended for the said Benjamin Welch, jr., for said office of treasurer, in the several election districts and counties mentioned, and the votes given for said Benjamin Welch, jr., in the other election districts of the state of New-York, for said office, were enough to elect him, by the largest number of votes, given at the said election, to the office of treasurer of said state.

The cause was tried at the Tompkins circuit in March, 1852, before Justice Gray and a jury.

The counsel for the plaintiffs proved, that, at the general election, held on the fourth day of November, 1851, the following votes, for the office of state treasurer, were given in the several election districts of the state, and were canvassed, by the state canvassers, and were allowed by them to the following persons, viz: for Benjamin Welch, junior, two hundred thousand four hundred and sixty-five (200,465) and for James M. Cook, two hundred thousand six hundred and ninety-three (200,693,) and that there were also given, in the said election districts, at the said election, for such office, the following votes in the following counties; which votes were canvassed as aforesaid, but were *268 not allowed, by the state canvassers, either to Benjamin Welch, junior, or to James M. Cook, viz: in Chemung county, for Benjamin Welch, 68; in Chenango, for B. Welch, 1; in Kings, for Benjamin Welch, 1; in Kings, for J. M. Cook, 1; in Livingston, for B. J. Welch, 1; in Livingston, for B. Welch, 1; in Livingston, for J. W. Cook, 2; in New-York, for B. Welch, 1; in New-York, for Cook, 2; in Ontario, for Benjamin C. Welch, junior, 32; in Saratoga, for Benjamin Welch, 1; in Saratoga, for James Cook, 1; in Suffolk, for James A. Cook, 15; in Tompkins, for Benjamin Welch, 47; in Yates, for John M. Cook, 1. The counsel for the plaintiffs then proved, that no returns from the inspectors of election of the second election district of the town of Chesterfield, in the county of Essex, of the votes given in said district, at the aforesaid election, were canvassed or allowed by the county canvassers, of the said county of Essex, in their canvass of the votes of said county; that a return of the votes given in said district, regular on its face, was presented and offered to the board of county canvassers of the county of Essex, by the supervisor of the town of Chesterfield, to be canvassed; which said original return was produced, proved, and offered in evidence, and was signed by Seymour Ames, Jehial Beardsley, and Major B. Weston, as inspectors of election of said election district; whose signatures thereto were proved to be genuine; by which it appeared, that the whole number of votes given in that district for the office of treasurer of the state, at the said election, was 73, of which there were, for Benjamin Welch, junior, 49, and for James M. Cook, 24; and it was proved, that this paper was the only return from that district of the votes given at said election. To the admission of this paper, the defendant's counsel objected, on the ground, that there was no evidence that the persons who signed said paper were inspectors of election for said district. The judge reserved his decision on this objection; and the counsel for the plaintiffs then proved, by the testimony of Jesse Gay, that he was present from between 9 and 10 o'clock in the morning, when the polls were opened, and was there until they closed. The persons who signed the return, officiated as inspectors all day. No question *269 was raised by any one as to their right to act. Nobody claimed to be inspectors that day, except these men. The question as to who were the inspectors, was talked of in the morning, before the polls were opened. It was conceded, on all sides, that Ames was an inspector. Finch said so, and others. Some one was sent for Ames, because he was reputed to be an inspector. Ames came, and proceeded to organize the board, acting as inspector. He appointed the others. They appointed clerks of the polls. There were oaths administered. The judge thereupon overruled the objection of the defendant's counsel, and permitted said paper to be read in evidence; to which decision, the defendant's counsel excepted. The counsel for the plaintiffs then proved, that the votes given at the polls, in the second election district of the fourteenth ward of the city of New-York, were not canvassed or allowed by the board of county canvassers of the county of New-York, and were not included in the return of votes of said city and county of New-York, made and returned to the secretary of state, comptroller and governor, to be canvassed by the state canvassers; nor were they canvassed by the state canvassers; and that the return from said district, of the inspectors of election thereof, was rejected by the said board. To these returns no specimen ballot was attached. The said counsel also gave in evidence two original duplicate returns of the inspectors of election of said last mentioned district, signed by Abel Price, Francis Gilmore and James O'Neill, inspectors; one of which had been delivered to the supervisor of said ward, and the other had been filed in the clerk's office of the said county of New-York; by which returns, it appeared that, in said district, at the aforesaid election, the whole number of votes given and received at said general election, in said election district, for the office of treasurer of the the state, was 398; of which the said James M. Cook received 66 votes for the office of treasurer of the state, and the said Benjamin Welch, junior, received 332 votes for the same office. The counsel for the plaintiffs then proved, by the statement of the board of canvassers of Ontario county, that the whole number of votes given in that county, for the office of state treasurer, *270 was 6591; of which 3664 were for James M. Cook, 2827 for Benjamin Welch, junior, and 32 for Benjamin C. Welch, junior; and, by the return of the inspectors of election of the town of Richmond, in said county, that the whole number of votes for state treasurer, in that town, was 276, of which 119 were for James M. Cook, 109 for Benjamin Welch, junior, 32 for Benjamin C. Welch, junior, which were the same votes stated in the county canvassers' statement to have been given for Benjamin C. Welch, junior, and which were contained in the statement of the board of state canvassers, and canvassed, and allowed separately to Benjamin C. Welch, junior, and not to Benjamin Welch, junior. The counsel for the plaintiffs then proved by Jacob J. Madison, that he printed the greater part of the ballots used in Ontario county, at the aforesaid election, containing the names of the nominees for state officers nominated by the democratic state convention at Syracuse. The said counsel produced a printed sheet, containing six of said ballots; all of which embraced the names of such nominees and of their respective offices; on one of which tickets the name of Welch was printed Benjamin C. Welch, junior, and not Benjamin Welch, junior. The compositor put the “C.” in the name of Welch in all the ballots in the form; the witness read the proof and marked out the “C's,” and returned the sheet to the compositor for correction. There were six of the state tickets on the sheet, and he corrected all but one. One sixth of the tickets would have the “C” in them. It was further proved by the plaintiffs' counsel, that Joseph Garlinghouse got from said Madison one package of these ballots, printed by him, and that Dr. Simmons got another package, both of which were taken to the polls of the said town of Richmond, and there distributed; that Benjamin Welch, junior, was the democratic candidate for state treasurer, and had been nominated as such at the democratic conventions, both in 1849 and in 1851; that the said Madison edited a democratic paper, and knew of no other democratic candidate for treasurer than Benjamin Welch, junior; that he had, at the time of the election, never known or heard of any man by the name of Benjamin Welch, or Benjamin C. Welch, junior, *271 except Benjamin Welch, junior, of Buffalo; that said Benjamin Welch, junior, was known to be the regular democratic candidate for treasurer at said election; that he knew of no other democratic candidate for treasurer; and that said Madison furnished the tickets for the towns of Naples and Gorham, and that all the ballots printed by him were printed on the same form, and were of the same emission. The counsel for the plaintiff then further proved, that the whole number of votes given in the county of Chemung for state treasurer, at the aforesaid election, was 4364, of which there were for Benjamin Welch, junior, 2445, for James M. Cook, 1850, and for Benjamin Welch, 68; that in the first election district of the town of Chemung, in said county of Chemung, 16 votes were given at said election for Benjamin Welch, and were so returned by the inspectors of that election district, which votes were canvassed, and were allowed separately to Benjamin Welch, and not allowed to Benjamin Welch, junior, both by the county canvassers and by the state canvassers; and the said counsel gave in evidence the original return of the inspectors of election in the town of Cayuta, in said county of Chemung, by which it appeared that, at said election, the whole number of votes given for the office of state treasurer in said town was 203, of which there were for Benjamin Welch, junior, 109; for James M. Cook, 42, and for Benjamin Welch, 52. The plaintiffs' counsel then proved by Julius Taylor that he resided last fall in Elmira, Chemung county; that he was a printer, and printed the ballots used in Cayuta and Chemung, in said county, at the last general election; that he printed the usual number, and they were taken from the office to go into the towns; on some of the tickets the “junior,” in the name of Benjamin Welch, was omitted, through inadvertence. Four tickets were printed on a sheet, and this omission occurred once in every fourth ticket; the ticket was printed for the ticket nominated at Syracuse, by the democratic state convention; there were about six hundred worked off and sent out before the witness discovered the mistake; that he knew Benjamin Welch, junior, was a candidate for state treasurer, nominated at Syracuse in 1849, and again in 1851; that he knew of no other *272 Benjamin Welch, and heard of no other man as a candidate for that office, on the democratic side.

The plaintiffs' counsel having rested, the counsel for the defendant gave in evidence a certified copy of the certificate of the board of state canvassers, stating that, at the aforesaid election, James M. Cook had been, by the greatest number of votes, duly elected to the office of treasurer of said state; and also a certified copy of the official bond and oath of the defendant. The defendant's counsel then proved, that, at the said election, in November, 1851, there were 276 votes cast for treasurer of said state, at the election polls in the third district of the town of Catskill, in Greene county, of which there were, for James M. Cook, 191; and for Benjamin Welch, junior, 85; that the returns of the inspectors of election of this district were duly made and filed, and that these returns were rejected, and said votes were not canvassed or allowed by the county canvassers of Greene county, or by the state canvassers; that there was a controversy before said board of county canvassers in relation to the legality of these returns, and testimony was taken by a committee of said board; that a specimen ballot was attached to these returns, but that the returns did not state how many of such ballots were voted. The defendant's counsel then proved, in relation to the election held at the polls in the second district of the fourteenth ward of the city of New-York, that Abel Price, Francis Gilmore and James O'Neill were the inspectors of election in that district, at said election, and acted as such; that the board of inspectors of said district was organized as follows: said Gilmore asked John Heaney (who kept the house where the polls were held) for a Bible, and said Heaney brought a book and handed it to said Gilmore; that this book was not, and did not contain, the Bible, or the Gospels; but was a copy of a French instruction book, entitled “Olendorf's new method of learning to read, write and speak French;” that said Gilmore then administered the official oath of inspectors of election to said Price and O'Neill; and O'Neill then administered the like oath to said Gilmore; that said oaths were administered by the persons who took the same, putting their hands on and kissing said *273 book; and that these were the only official oaths taken by said inspectors; that this book was believed, by said inspectors, at that time, to be a Bible; that immediately afterwards, Michael O'Connor was appointed a clerk of the polls, and took the official oath, in the same manner on said book; and that neither said inspectors, nor said clerk, requested to be sworn otherwise than on the Bible or Gospels, by laying their hands on and kissing the same; and said inspectors and clerk believed said book to be a Bible, and used it in that belief, and did not discover that it was not the Bible, or Gospels, until about ten o'clock in the forenoon, when McLaughlin discovered it to be a copy of Olendorf's book, and it was immediately, after such discovery, removed, and a Bible procured and used in its place; that said inspectors did not, when they appointed O'Connor, appoint another clerk; the reason for which was, that they knew of no person present who was suitable, and who would serve; that the inspectors sent for another person, John Ryan, to come and act as clerk, and announced to the voters that they were anxious to take their votes, but could not, till the other clerk came; that finding the voters very desirous to vote, the inspectors determined to commence taking votes, and did so commence, only one person, said O'Connor, acting as clerk, and only one poll list being kept; that they continued to take votes, in this manner, for an hour and a half, and until twelve persons had voted; that then a boy, by the name of John W. Heaney, 14 or 15 years old, without being sworn, kept a list on paper, for half an hour; that said boy commenced keeping the other poll list, copying, from the list kept by O'Connor, such names as were already entered, and entering others as the electors voted, and continued to do so until half past nine, at which time said John Ryan came, there being then sixty names of voters entered on the poll lists; that said John Ryan was then appointed a clerk of the polls, took his official oath on the Bible, and acted as such clerk during the remainder of the day; that about ten o'clock in the forenoon, it was discovered by the inspectors that said book on which they had been sworn was not a Bible, and thereupon a Bible was procured, and used by said inspectors for the rest of *274 the day in administering oaths to challenged voters, but that neither said inspectors, nor said O'Connor, were sworn in upon the Bible, or Gospels, or in any other manner than as above mentioned; that before said Bible was procured, two voters were challenged, one by each political party; that the inspectors swore them on said French instruction book, believing it to be the Bible, in the manner above described, and their votes were admitted; that about nine o'clock A. M., Price went to breakfast, and shortly afterwards, and before Price returned, Gilmore went to breakfast; that O'Neill, then being the only inspector present at the polls, verbally appointed William G. McLaughlin inspector; that said McLaughlin took the official oath as inspector, by reading the same from the pamphlet containing the election law and forms, and by kissing the Bible which was held by said O'Neill; that said McLaughlin and O'Neill then proceeded to act, and did act as inspectors, and McLaughlin received and deposited ballots for half an hour, and until Price returned; that upon the return of Price, said O'Neill, McLaughlin and Price continued to act as inspectors, receiving and depositing ballots, until Gilmore returned, which was about five minutes after the return of Price, when said McLaughlin went away and ceased to act as inspector; Gilmore then recommenced acting as inspector with said Price and O'Neill; that McLaughlin had been inspector in said wards for a great number of years, and was invited to be present by each and all the said inspectors, who had never before acted in that capacity, to aid them with his advice; that when McLaughlin left, Price requested him to come back and relieve the inspectors, so that they might go to dinner; that about one o'clock McLaughlin returned and acted again as inspector with Price and Gilmore, while O'Neill was eating his dinner in the back part of the same room where the polls were held, behind the table on which were the ballot boxes; that after O'Neill had finished his dinner and had recommenced to act as inspector, Gilmore and Price went away to their houses to dinner, and McLaughlin continued to act as inspector, and acted in company sometimes with one and sometimes with two of the regular inspectors, until all three of the regular inspectors had *275 returned, when he ceased to act as inspector for the time, and went away; and that near the time of closing the polls, McLaughlin returned to the poll room. It was proved that one of the inspectors, Price, upon looking at his watch, discovered it was sundown, and so informed McLaughlin and O'Neill, and said it was time to close the polls; the inspectors, McLaughlin acting as one of the three, then agreed to close the polls, acting upon the idea and belief that it was sundown; they agreed to, and did close the outer door of the large room in which the electors were; prevented all others from coming in, and received the votes of those in the room ready to vote; those in the room ready to vote, voted; some ten or fifteen in all; all was done within ten minutes, and all done after sundown; the polls were then closed; between the time Price announced it was sundown and the time of closing the polls, four persons, including McLaughlin, acted as inspectors a part of the time. It appeared that no legal votes were rejected, and all the legal votes offered were honestly received and placed by the inspectors in the appropriate boxes; that as soon as the last vote was received, the usual proclamation closing the polls was made, and the polls closed; the poll lists were compared, and proper preparations were made for canvassing the votes; the original poll lists were procured and put in evidence on the trial, from which it appeared that they agreed with each other, and with the number of votes given for the state ticket; the inspectors then proceeded to canvass the votes, and canvassed the state box first, and completed that box between nine and ten o'clock that evening, the clerks keeping a tally list of said canvass; after the poll was closed, the policeman present for that purpose, cleared the poll room of all persons present, except themselves, and the policeman, whose business it was to keep clear the place where the inspectors were canvassing; after the state ticket was canvassed, the inspectors repaired to another room, up stairs, for the purpose of completing their canvass and returns; it was after going up stairs that the people were kept out of the room where they were canvassing; that at about daylight, the large room being too cold to be longer occupied by them, they repaired to an upper room in the *276 same house, where a fire was provided, and there completed the canvass, at half past one, P. M., November 5th; that they securely locked up the tally lists, containing the complete results of the election in words and figures, and went to their dinner, and returned the next day and made the returns, the said tally lists being found in the place and in the exact condition in which they were left; the returns then made were produced in court on said trial as evidence, and shown to be correct and fair on the face; that after said returns were made, and one copy taken by O'Neill to the ward canvassers of the 14th ward, on the 6th of November, it was found by said board of ward canvassers that a mistake had been made in setting down the whole number of votes given for judges of the superior court of the city of New-York, and were rejected by said board for that reason; that said error was merely clerical, and did not relate at all to the state ticket; that said inspectors met on the evening of the 6th of November aforesaid, and corrected said error, by inserting the whole number of votes given for said judiciary ticket, but without in any respect changing any result before contained in said returns; that James M. Bard and said McLaughlin were present, and McLaughlin corrected the error; that the returns thus corrected were duplicates, one of which was immediately delivered to James M. Bard, supervisor of said 14th ward, and the other filed in the office of the county clerk of the city and county of New-York, on the 7th day of November aforesaid; that said Bard presented said returns to the board of county canvassers of said city and county, at the canvass of the votes of said city and county, and demanded that the same and the votes therein contained be canvassed by said board of county canvassers, which said board refused to do, and rejected the same. It was not shown or alledged on said trial, that any illegal votes were received, or any legal votes were rejected at said election; but it did appear on said trial, by the evidence of Abel Price, the whig inspector, and by the testimony of said O'Neill, McLaughlin and O'Conner, who were democrats, that there was no intentional irregularity or wrong in any part of the proceeding, *277 and that said votes were fairly and honestly received and accurately canvassed, and returned by said inspectors.

The defendant's counsel then proved that, in the first election district of the town of Little Falls, in the county of Herkimer, the whole number of votes for state treasurer, given at the said election in November, 1851, and returned to and canvassed by the county canvassers, was 598; of which Benjamin Welch, jr. received 321, James M. Cook 267, and Charles D. Miller 10; that in the second election district of said town of Little Falls, the whole number of votes given, returned and canvassed, as aforesaid, for state treasurer, was 245; of which Benjamin Welch, jr. received 182, James M. Cook received 57, and Charles D. Miller received 6; that in the first election district of the town of Herkimer, in the county last aforesaid, the whole number of votes given, returned and canvassed, as aforesaid, for state treasurer, was 255; of which Benjamin Welch, jr. received 141, James M. Cook 43, and Charles C. Bellinger 1; that in the first election district of the town of German Flats, in said county, the whole number of votes given, returned and canvassed, as aforesaid, for state treasurer, was 316; of which Benjamin Welch, jr. received 207, James M. Cook received 107, and C. D. Miller received 2; and the defendant's counsel further proved, that these votes, so returned in said county of Herkimer, were, by the state canvassers, as well as by the county canvassers of that county, canvassed and allowed to the respective candidates above named; and further, that in each of the original returns from the said districts, respectively, made by the inspectors of election therein, of the votes given in said districts respectively, at said election, the specimen ballot attached to said returns, headed or indorsed “state,” and having on it the name of Benjamin Welch, jr. for state treasurer, was in the usual form, and contained the names of the democratic candidates for the different state offices, with the following addition, however, at the bottom or end thereof, “For County Judge, Ezra Graves.” The defendant's counsel then proved, that the returns of the inspectors of election of the second election district, in the town of Gorham, in the county of Ontario, stated, that at said election, *278 62 votes were given in that district for Benjamin Welch, jr. for state treasurer, and 62 votes for James M. Cook, for the same office; which votes were canvassed and allowed for the said Welch and Cook respectively, by the county canvassers of said county, and by the state canvassers; and that the specimen ballot attached to said return, headed “state,” had thereon, for state treasurer, the name of Benjamin Welch, jr., and that there was written, partly on said ballot and partly on the paper to which it was attached, words indicating that 60 ballots of that kind were received, and no ballot was attached to said return having thereon the name of Benjamin Welch, jr. And the defendant's counsel also proved, that the returns of the inspectors of the town of Naples, in said county, stated that at said election 227 votes were given for Benjamin Welch, jr. for state treasurer, and 191 votes for James M. Cook, for the same office, which votes were canvassed and allowed for said Welch and Cook respectively, by the county canvassers and by the state canvassers; and that the specimen ballot attached to said return, headed “state,” had the name thereon, for state treasurer, of Benjamin C. Welch, jr.; and that there were written, partly on said ballot and partly on the paper to which it was attached, words indicating that 209 ballots of that kind were received; and no ballot was attached to said return having thereon the name of Benjamin Welch, jr. That the signatures of the inspectors, to the certificates attached to said returns, from Gorham and Naples respectively, preceded said specimen ballots; and the signatures of the inspectors to the certificates attached to said returns, from Gorham and Naples, also followed said specimen ballots; and it appeared said ballots so attached were a part of those printed by Jacob J. Madison.

The defendant's counsel then, for the purpose of proving who were elected inspectors in the second election district in the town of Chesterfield, Essex county, offered in evidence a certificate of the town clerk of the town of Chesterfield, in the county of Essex, and it was proved that the same was signed by C. D. Beaumont, who was, at the date thereof, town clerk of said town; that the same was filed in the county clerk's office, of *279 said last mentioned county, November 11, 1851, and was used at the canvassing, in said county, of the votes received at said election. To the admission of this the plaintiffs' counsel objected. The judge sustained the objection, and excluded said evidence, and the defendant's counsel excepted.

The counsel of the defendant then proved, by a certified copy of the statement of the official canvass of the votes of the county of Kings, that the whole number of votes given in said county of Kings, at said election, for the office of state treasurer, was 13,553; of which James M. Cook received 7195 votes, and Benjamin Welch, jr. 6349 votes. Benjamin Welch received one vote, and J. M. Cook received one vote. The counsel of the defendant then produced a certified copy of the return of the inspectors of election of the second election district of the town of Williamsburgh, in said county of Kings, duly certified by the county clerk of said county of Kings, from which it appeared that the whole number of votes given in said election district, at said general election, for state treasurer, was 694; of which number James M. Cook received 271 votes, and Benjamin Welch, jr. received 423 votes. It was then proved and shown, on the part of the defendant, by the testimony of James Hanford, Giles Smith and George F. Malia, that soon after sunrise, on the morning of the election in November last, John F. Runcie, town clerk of the town of Williamsburgh, administered the inspector's oath of office to James Hanford, James Murphy and Josiah Holmes, who had been appointed such inspectors, as appeared only from the evidence of William H. Butler, the plaintiffs' witness, and the appointment produced by him, hereinafter stated, received against the objection of the defendant's counsel; none of the elected inspectors being there present at the place of opening the polls. That thereupon said persons, as inspectors of election for said district, opened the polls of election in said district and proceeded to receive votes from the electors therein; that for nearly half an hour said Hanford acted as clerk of the polls, and kept a poll list with a lead pencil, because it was found to be impossible to procure any elector of the district to act as clerk; that finally, said *280 Malia consented to act as clerk, and was thereupon appointed by said inspectors, and entered on the discharge of his duties as such clerk, and commenced a poll list, and copied on to the same the votes from Hanford's list, he having recorded about forty votes while acting as such clerk. It did not appear that he was sworn to discharge the duties of clerk; as a witness, he testified that it was his own impression he was not. Soon after, Abraham R. Coles was persuaded to act as the other clerk, and was duly appointed and entered on the discharge of his duties as such clerk, and kept a regular poll list, having copied into it, from Malia's list, the votes received before he commenced acting as clerk. Giles Smith was an elected inspector, and John A. Burdett and _____ Stevens were reputed to be two of the elected inspectors of election in and for said district; but neither of them were present when the polls were opened. Said Smith took his oath of office before a justice of the peace at the time he was elected, and was not sworn again. That said Smith came about 9 o'clock, A. M., and entered on his duties as inspector, and said Hanford left, and ceased acting as inspector. That at about 11 o'clock said Burdett came and entered upon the duties of inspector, and then Burdett, Smith, Murphy and Holmes, all acted a short time as inspectors; and then said Murphy ceased to act as inspector. That said Smith, Burdett and Holmes, held the election during the remainder of the day, said Malia and Cole acting as clerks; that for an hour before the polls were closed, said Murphy was in the room with the inspectors, and deposited some of the votes received in the proper ballot boxes; that Burdett, Smith, Murphy and Holmes, all acted as inspectors, at this time, for an hour; that said election was held in a large hall, the inspectors being in an adjoining room, and receiving the votes through a large window; that the polls were closed at sundown. The poll lists of the state box did not appear, from the evidence, to have been compared; in the city box they were, and they differed 25 or 30. That one Samuel B. Scott, being present, was then sworn in as an inspector of election; and said Hanford, Murphy, Holmes, Smith, Burdett and Scott, proceeded to canvass the votes. That *281 all of said persons were engaged, for a time, in canvassing the city box. That before completing the canvass of said box, Burdett and Smith took the state box to another table, about three feet distant, Malia acting as clerk, and canvassed said box; Malia keeping a correct tally list of said canvass; that said canvass was completed, and the true result stated in said tally list, at about 8 o'clock, A. M., Wednesday, when said inspectors adjourned and went to breakfast; and at about 11 o'clock, A. M., met at the clerk's office, four or five blocks from the polls, and made a correct return of said votes and of said canvass from said tally lists; the return being signed by Burdett, Holmes, Hanford and Murphy, as inspectors; that said inspectors and clerks acted in good faith, and did not knowingly receive or record any illegal votes at said election, or reject any legal vote offered at said election; that all the votes received were deposited in the proper boxes, except that three state tickets were found in the city box, which were not canvassed, it not appearing that they were short of votes in the state box; that all the votes given at said election were honestly canvassed, and all the votes given for any candidate or person at said election were honestly and fairly allowed to said candidate or person in the canvass; and a true and faithful return of said votes and canvass was made by said inspectors; and that said election district contained about 900 legal and qualified voters; that said return was presented to the board of county canvassers for said county, but it was found to be defective, in not stating the whole number of votes given for several persons on the state ticket; and it was for that reason, by order of the board, given to Mr. Berry, one of the supervisors of Williamsburgh, to be taken to the inspectors to be corrected. That said Berry returned the same to the board the next morning, with the amended return attached thereto as a part thereof, and it was thus received by said board and canvassed. The original return was signed by the inspectors; and Mr. Stryker, the clerk, put their names to the paper containing the amendments, in pencil, after the same was delivered to said board of county canvassers. And the *282 same was not otherwise signed by the inspectors, and the said board acted on the said return as amended.

The defendant's counsel then proved that, at the same election, the inspectors of election, in the western district of the first ward of the city of Buffalo, took their oaths of office upon a book called “Watts' Psalms and Hymns,” and not upon the Bible or the Gospels, believing, when they took such oaths, and until four o'clock, when the mistake was discovered, that they swore in on the Bible; that, with knowledge of the fact, said inspectors administered after four o'clock, P. M., to challenged voters upon said book, and not on the Gospels or the Bible, the oaths required to be put to such challenged voters, such voters not having desired to be sworn without the use of the Bible; that the number of voters so sworn was three; but that it was not known to said challenged voters that said book was not the Bible; that the two clerks of the polls of said election district took their official oaths in the same manner; not knowing, at the time, but they were sworn on the Bible, neither the inspectors nor the clerks asking to be sworn without the use of the Bible or Gospels; that Benjamin Welch, junior, had a majority of 185 votes in said election district, at said election, for the office of state treasurer; that the votes of that district were canvassed and allowed by the county canvassers of Erie county, and included in the official return and certificate, and returned to the state canvassers; that for the space of half an hour, at the opening of the polls, only one clerk acted; but one of the inspectors, in the mean time, acted as the other clerk, in keeping poll lists; that all the votes cast in that district, at said election, for state treasurer, were returned by the said inspectors, in their official return, to the county canvassers; that so far as the knowledge of the inspectors and clerks extended, there was no fraud or unfairness in conducting the election in said district; that no return of challenged voters was made.

It further appeared in evidence, that the returns of the county canvassers in the several counties of Greene, Essex, New-York, Tompkins, Chemung, Erie, Kings, Herkimer and Ontario, of the votes given at said election, did not state the number of votes *283 given for each candidate for office in each of the several election districts and towns in said counties, but only the aggregate number given in said counties respectively for such candidates.

The defendant's counsel objected to the sufficiency of the returns from the second district of the fourteenth ward in the city of New-York, upon the grounds, 1st. That it appeared that there were but 405 persons who voted the state ticket in that district. 2. That no specimen ballot was attached to the return from that district. The defendant's counsel also objected to the returns from the county of Greene to the state canvassers, upon the ground, that it did not appear from the return what number of voters voted the specimen ballot attached to the return. Each of these objections was overruled by the judge, and the defendant's counsel excepted to the ruling upon each of the objections taken.

The people's counsel objected to the sufficiency of each of the returns of the county canvassers of the counties of Essex, Greene, New-York, Tompkins, Erie, Kings and Ontario, upon the ground that they did not respectively contain a statement of the whole number of votes given in each of their respective counties for state officers; and also upon the ground that they did not contain a statement of the whole number of votes given in each election district of each of said counties for state officers; each of which several objections was overruled by the judge, and the people's counsel excepted.

No evidence was offered by the defendant, on the trial, to prove that any person was either nominated or known to the electors at said election, for the office of treasurer, or any other office, by the name of Welch, or Benjamin Welch, or Benjamin C. Welch, junior, except the Mr. Welch nominated at the democratic convention held at Syracuse; but it was admitted that Benjamin Welch, the father of Benjamin Welch, junior, was at the time of said election living in the state of New-York, in the county of Chenango; that he was an obscure farmer, and was not, and never had been a candidate for the office of treasurer, or for any other office; that he was an old man, about seventy years of age, and that he never had held any public office.

*284 The evidence being closed, the counsel for the defendant claimed that it should be submitted to the jury as a question of fact. 1st. Whether there was any fraud as to the manner of closing the polls, and in canvassing the votes in the second district of the fourteenth ward of the city of New-York. 2d. Whether the votes given for Benjamin C. Welch, junior, and Benjamin Welch, were intended to be given for Benjamin Welch, junior. All other questions were conceded to be questions of law and not of fact. The judge declined to submit either of these propositions to the jury; holding there was no evidence to sustain the allegation of fraud, and that inasmuch as the evidence adduced to establish the intention of the electors who voted the ballots having on them the name of Benjamin C. Welch, junior, and Benjamin Welch, without the addition of “junior,” was all on one side, and not attempted to be explained or contradicted, and sufficient to establish prima facie the intention of those who voted them, to vote for Benjamin Welch, junior, the democratic nominee; no question of fact was therefore left to the jury. The defendant's counsel excepted to the above decision.

The whole case was then submitted to the judge without argument; and he decided the several questions arising in the case as follows: 1st. That the votes given in the third district of Catskill were improperly rejected, and should have been canvassed, and the majority of one hundred and six there given to Mr. Cook, awarded to him. 2d. That the votes given in the second election district of the town of Chesterfield, Essex county, were improperly rejected, and should have been canvassed, and the majority of twenty-five there given to Mr. Welch, awarded to him. 3d. That the ballots voted in Tompkins and Chemung county, one hundred and fifteen in all, were intended by the electors who voted them, for Benjamin Welch, junior; and that the ballots voted in Richmond, Ontario county, were also intended by the electors who voted them, for Benjamin Welch, junior, and should have been so canvassed and awarded to him. 4th. That the votes in Naples and Gorham, Ontario county, for Benjamin C. Welch, junior, were intended for Benjamin *285 Welch, junior, and were properly canvassed as such. 5th. That the votes in Herkimer, Buffalo and Williamsburgh were legally canvassed and allowed to Mr. Welch; and that the votes in the second district of the fourteenth ward of the city of New-York were improperly rejected, and should have been canvassed, and the majority given to Benjamin Welch, junior, allowed to him, and should now be allowed to him. The defendant's counsel excepted to the several decisions against the defendant, so made by the judge; and the jury rendered a general verdict for the plaintiffs under the direction of the court.

The defendant, upon a bill of exceptions, moved for a new trial.