adopted in the early case of Tallaferro vs. Hungerford, (Cl. & H., 246,) where it was held that the land list prepared under a statute of Virginia, and required by law to give the names of all freeholders for the year prior to an election, is proper to be considered as prima facie evidence of the number of voters in a county, but not conclusive. And in Blair vs. Barrett, [1 Bartlett, 308,] it was held that the city government of St. Louis, having ordered a census to be taken with statistics of nationality and naturalization, such census, and the testimony of the census taker, were admissible in evidence.

§ 353. The House of Representatives has shown a disposition to give a liberal construction to the acts of Congress in relation to the mode of conducting cases of contested elections. They are construed with reference more to the substantial rights of the parties, than to the exact wording of the statute. And it may be expected that the House will continue so to construe these statutes, for as we have elsewhere shown, they are not absolutely binding upon the House in any case. They are adopted only as wholesome rules of practice, and of course a tribunal could hardly be expected to construe with great strictness, a statute which it may in its discretion disregard altogether. It was accordingly held in Kline vs. Verree, [1 Bartlett, 381,] that where the contestant failed to specify with particularity the grounds of his contest, he might be permitted to specify such grounds orally. This, however, should never be allowed in a case where the substantial rights of the sitting member might thereby be prejudiced. As for example, if the notice is so vague as

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not to put the sitting member upon his proper fense, and as not to inform him with reasonable certainty of the nature of the case, which he is expected to meet, it would be altogether improper to allow such notice to be amended and perfected by an oral or even by a written specification, made at the trial and after the closing of the evidence on both sides. If in such a case any amendment could be allowed, it would necessarily follow that an extension of time within which to take testimony should be ordered. To spring a new issue upon the sitting member, of which he has had no notice, and to try the same without permitting him to take testimony touching such new issue, would be a course of proceeding not to be tolerated.

§ 354. Testimony to be used in a case of contested election, in the House of Representatives, of the United States, must under the law, as it stood prior to the recent amendments, be taken within sixty days from the time the answer is served, unless further time is given by the House. Therefore a deposition taken after the sixty days has expired, and without the order of the House will be excluded. (Knox vs. Blair, 1 Bartlett, 521. Todd vs. Jayne, 1 Bartlett, 555.) In the case last named it was held that notwithstanding the requirement of the statute that notice of contest shall be served "within thirty days after the result has been declared," yet if the sitting member answers to a notice served before the result is declared, he should be held as waiving this objection and cannot avail himself of it on the final hearing. The true construction of the statute allows the notice to be served at any time within the

thirty days, but not after the termination of that period.

§ 355. Under a statute of Virginia, requiring that all voters shall be free-holders, it was held that the land books of the county were admissible in evidence to show who were free-holders, they being regularly certified by the clerk of the county to be correct. These books were made out annually under the laws of Virginia, and were intended to contain a list of all the separate tracts of land and the owners names. (Loyal vs. Newton, Cl. & H., 520.) These books were undoubtedly admissible upon the same principle that census returns are admissible in evidence, but they are only prima facie and proximately correct. Books and records of this character are necessarily more or less inaccurate and erroneous, and do not have the conclusive character which attaches to some other public records.

§ 356. For the purpose of showing that non-residents have voted, witnesses are often called to testify that persons whose names appear upon the roll as having voted, are not known to them as residents of the county or voting precinct, as the case may be. This kind of evidence is admissible for what it is worth, but it is manifest that its value must depend upon circumstances. If the district or territory within which the voter must reside is large, or very populous, and the witness has not an intimate and extensive acquaintance with the inhabitants, the evidence will be of little value, and standing alone will avail nothing. But on the other hand, if such district or territory is not large or populous, and if the witness shows that his acquaintance with the inhabi

tants is such that he could scarcely fail to know any person who may have resided therein long enough to become a voter, his evidence may be quite satisfactory, especially if it further appears that soon after the election the alleged non-resident voter could not be found in the district, within the limits of which all voters must reside. Proof of this character must at least be regarded sufficient, to shift the burden upon the party claiming that the vote of such alleged nonresident be counted, and require him to show affirmatively that he is a bona fide resident. It was held under the constitution of Kentucky, which only required residence in the county, that no name should be stricken from the polls as unknown, upon the testimony of one witness only, that no such person is known in the county. Also, that where a man of like name is known, residing in another county, some proof direct or circumstantial, other than finding such a name on the poll book, will be required of his having voted in the county or precinct, where the vote is assailed. (Letcher vs. Moore, Cl. & H., 749.) It was further held in the same case that when the name of a particular person is found on the poll book as having voted, proof that an individual of that name resides in the county and is a minor, is not of itself sufficient to strike out the vote. Some further proof, direct or circumstancial, should be required to show that the vote was in fact cast by such minor.

357. The constitution of Kentucky provided that votes "shall be personally and publicly given viva voce." In Letcher vs. Moore (supra,) it appeared that three persons had voted for Mr. Letcher who,

though intelligent and able to read and write were deaf and dumb. Of course these persons could not literally vote viva voce, and the question was raised whether they were legal voters under the constitution. The committee held that their votes should be received as clearly within the spirit of the constitution, although in reaching this conclusion, a previous decision of the Senate of Kentucky, in the case of Williams vs. Mason (not reported) was overruled. No doubt is entertained as to the correctness of the ruling of the committee.

§ 358. In Follett vs. Delano, (2 Bartlett, 113,) the committee of elections of the House of Representatives expressed the opinion, that inasmuch as there is no statute defining the mode of proving the service of notice in a contested election case in that body, such service must be proven as any other fact in the case, by the deposition of a witness, and that an affidavit is not sufficient. And the committee in the same case also expressed the opinion that inasmuch as the statute requires the contestant to "give notice in writing to the member whose seat he designs to contest," and does not define the mode of service, it must be a personal service, and that service, by leaving a copy at the residence of the sitting member is not sufficient. These points can hardly be considered as settled, by any decision of the House, since the case itself was considered upon its merits, notwithstanding the defective service, and it is the opinion of the author that it would not be safe to risk a 'case upon this construction of the statute, which, though perhaps technically correct, may at any time be disregarded by a majority of the House, as it is