nesses. It will be seen that this section requires witnesses to be examined touching all such matters respecting the election about to be contesed as shall be proposed by either of the parties or their agents." And Sec. 122 provides that the officer shall cause the testimony of the witnesses, together with the questions proposed by the parties or their agents to be reduced to writing," &c. From all which it seems clear that witnesses are to be examined before the proper officer, and under his direction, and that the parties or their attorneys, may appear and propound any proper questions. In the absence of the officer named in the notice, and who issued the subpœna, depositions may be taken before any other officer who is authorized to issue such subpoena, or by any officer who may be agreed upon by the parties. And this rule applies as well to testimony ta ken within the district as to that taken without the district. [Sec. 120.]

10. The testimony is to be confined to the issues joined between the parties, and the ordinary rules of evidence should be applied in determining questions of competency and relevancy. [Sec. 121.] Testimony must be written down, together with the questions propounded, in the presence of the officer, and in the presence of the parties or their agents, if attending, and must be attested by the witnesses. [Sec. 122.] Sec. 123 provides for the production of papers to be used as evidence in contested election

cases.

The taking of testimony may, if so stated in the notice, be adjourned from day to day. [Sec. 124.]

11. The notice to take depositions with the proof

or acknowledgment of service thereof, and a copy of the subpoena when one has been served, are to be attached to the depositions when completed, and a copy of the notice of contest, and the answer thereto, are to be prefixed to the same, and transmitted with them to the clerk of the House of Representatives. [Secs. 125 and 126.]

12. It is the duty of the officer who takes testimony to be used in a contested election case, without unnecssary delay to certify, carefully seal up, and forward the same to the clerk of the House of Representatives. This is to be done "when the taking of the same is completed." [Sec. 127.] If the testimony of a number of witnesses is taken before the same officer, he may delay the sending forward of the testimony until all have been examined-but must not delay its transmission any longer than is necessary for this purpose, and he must be careful to keep the testimony in his own possession, and securely, until it is mailed, as prescribed by the statute. Testimony of witnesses taken to be used in a contested election case, must be certified by the officer taking it, but neither the form nor the substance of the certificate is prescribed by the statute. Doubtless the form prescribed by the law of the State in which the testimony is taken, for authenticating depositions, taken under the laws of that State, should be regarded as sufficient. In cases where no form is prescribed by the local law, it will be sufficient if the officer's certificate shows that the witness came before the officer at the time and place named in the notice that he was duly sworn and examined, that the questions propounded to him, and his answers

thereto, where written down in his presence, and in the presence of the parties or their counsel, [if they attended,] and that after being thus written out the testimony of the witnesses was duly attested by the witness, as by law required. The certificate should be signed by the officer, and attested by his seal of office, if he have a seal.

13. Testimony taken under the law and returned to the clerk of the House of Representatives, must remain in his custody unopened, until the meeting of Congress, after which it is under the control of the House, and is generally ordered to be printed and referred to the committee of elections.

§ 394a. When a contest is tried before a legislative body, under a law providing a special mode of proceeding, costs will not be allowed except by the action of such legislative body. They cannot be recovered by suit. (Garrard vs Gallagher 11 Nev.382)

CHAPTER VII.

IMPERFECT BALLOTS.

§ 395. It frequently happens that ballots are deposited in the box, which do not perfectly express the voter's intent. This is the case when the name of the person voted for is incorrectly spelled, or where the candidate's initials are not correctly given, or where the office to be filled is not clearly designated as well as in many other similar cases.

In the case of McKenzie vs. Braxton, in the House of Representatives of the forty-second Congress, this subject received a very careful consideration. That was a case in which ballots were deposited for "E. M. Braxton," for "Elliot M. Braxton,"

for "Elliott Braxton," and for "Braxton," for Congress. The report of the committee, which was adopted by the House, presents a correct statement of the law upon this subject, and the importance of the questions discussed will justify the following quotation therefrom:

§ 396. "The proof in this case clearly shows that the sitting member is known throughout the district as well by the name of E. M. Braxton, as by that of Elliott M. Braxton; and that he is familiarly called Elliott Braxton; also, that there is no other person in the district, except the sitting member's infant son, who bears the name of Elliott M. Braxton, E. M. Braxton, or Elliott Braxton; and that the sitting member was regularly nominated for Congress by the democratic or conservative convention of the district; that his letter of acceptance was signed E. M. Braxton; that he canvassed the district and was the only person of the name of Braxton who was a candidate. These facts are not disputed by contestant; but we are asked to throw out a large number of votes, unquestionably cast in good faith for the sitting member, upon the purely technical ground that his name was printed upon the ballots E. M. Braxton, or Elliott Braxton, instead of Elliott M. Braxton. The grounds upon which the contestant makes this claim seem to be

1. That we are not permitted to look beyond the ballot to ascertain the voter's intent; and

2. That the ballots in question cannot, upon their face, be held to have been intended for Elliott M. Braxton.

It may be, and doubtless is, sometimes necessary

to sacrifice justice in a particular case, in order to maintain an inflexible legal rule, but all just men must regret such necessity and avoid it when possible to do so. Your committee are clearly of the opinion that no such necessity exists here. So far from demanding such a sacrifice of right, the law, as well as equity, forbids it.

The contestant asks the House to apply the strict rule which has sometimes, though not always, been held to govern canvassing officers, whose duty is purely ministerial, who have no discretionary powers, and can neither receive nor consider any evidence aliunde the ballots themselves. It is manifest that the House, with its large powers and wide discretion, should not be confined within any such narrow limits. The House possesses all the powers of a court having jurisdiction to try the question, who was elected? It is not even limited to the powers of a court of law merely, but, under the Constitution, clearly possesses the functions of a court of equity also. If, therefore, it were conceded that the canvassers erred in counting for the sitting member the votes cast for E. M. Braxton and Elliott Braxton, it would not determine the question as to what the House should do. What, then, is the true rule for the government of the House in determining what votes to count for the sitting member? Your committee are clearly of the opinion that where the ballots give the true initials of the candidate's name, that is sufficient, and we, therefore, without hesitation, hold that the ballots given for E. M. Braxton must be counted for the sitting member.

Another objection, urged with much more zeal by