The daily gazette., 1883-02-09
RspRINrEp FROM YESTERDAY
coUET rms aIoRNINe.

AOVAtA AkAAn MAOAANAA0s
Disposition OF the Contested Election
Case-The costs lsut Upon the Plain
ti6,
Court was opened at 11.5o, when Chief
Justice Comegys stated that the opinions OF
himself and Judge Houston 10 the Lynch
Martin case would be read. Judge Woot-
tens opinion, which had not yet arrived,
was expected BY the next mail. The Chief
then read his opinion as follows:
This Is an application from Purnal j.
Lynch who was candidate for the Office OF
Sheriff of New Castle county at the General
Election held on the 7th day Of November
last, for a ruling upon James Martin, also
candidate for that Office at the same time,
and who, having received certificate OF his
election from the Board Of Canvass and
a commission from the Governor, and also
entered into recognizanee according to law,
and been duly qualified according to the
Constitution Of the United States and the
Constitution and laws of this State, is In the
exercise of the duties of said ofiice-to show
cause why an information in the nature
of a quo aoaYrdnto should not be
fled and writ issued requiring him TO
show by what warrant he holds the said
Office.
la showing cause against the rule the
respondents counsel filed In behalf OF their
client certain affidavits.
They also took the ground, among other
points, that the affidavits in support of the
rule are in themselves insufficient for that
purpose. If that be SO, then the rule must
be discharged.
There does not appear to be any system
Of rules with respect to affidavlts, but II
may be taken as fact that, In all
afiidaylts filed, as the foundation
of proceedings 10 open an election
by ballot and inquire into the right
TO vote of persons who did vote thereat,
there sh, uld be set forth the names
of the alleged illegal voters where
illegal voting is the allegation. If their
names are unknown 1t should be so stated
and some mode or means OF identification
given for the reason that the affirmative of
the issue In qU9 icarra,tto of this character
is upon the respondent, although 1t may be
sufficient for him in his plea TO the writ to
allege his commission, recognizanec and
qualification by having taken the oaths Of
office. Yet, upon replication setting forth
facts affecting the legality Of votes cast or
the election itself he would be compelled
TO traverse those facts, If material
and properly alleged, and tender
issue, the maintenance OF which would be
upon him. Now, II 1t were sufficient simply
to ullege in the relator's replication that
certain quantity or number Of illegal votes
were cast for the respondent at certain polls
without giving the names OF the voters, how,
if the issue should he made up by traverse
of that averment Gas it would have to be If
such an allegation in an affidavit were
sufficiently would 1t be possible for the
respondent to produce the proof that such
quantity or part of it was legal He could
not do It except by negative testimony, and
that will not support an affirmative allie
cation. The pleadings in quo UdrrdittO
must have the same legal qualities as those
in other cases. In fact, from the
quasi criminal nature of informations,
they should have the same element ol
certainty as an indictment, and the same is
true, of course, of the affidavits upon which
the writ IS founded, though no consequence
would be given To defect of mere form. Take
the case OF any affidavit as the foundation for
legal process--ciyil or criminal-and 1t must
set forth facts in direct, plain and circum-
stantial manner in order TO show the
defendant just what he will
be called upon to answer
And this is particularly true where, as here,
affidayits may be answered by allidavits
Without particular statement there is Nc
means by which defendant can do more
than deny the allegation, such as 1t may be
The relator in this case charges the casting
of illegal ballots at several voting
places, but he does not state tht
name of any voter who cast them
nor does the other afiiant, Thomas Toy with
respect to those alleged by him to have beer
cast at the poll where he was present |
not, therefore, the affidavit in each case bu
loose, general charge of fraud and illegalit
in the sense in which that phrase is used b
Lord Kenyon in Rex VS., Sargent, t. X
465! And we have not bee
pointed TO any case where tn
names of the alleged INEQUALITIES
voters were not set forth in the proceedings
In fact | have seen but one case wher
illegallty of voting by ballot was the grount
of the application, and In it (kex vs.. JetIer
son, > Barns, A. d. 500 lists of the alleget
Illegal voters appeared by atlidayits. Ho'
is any issue to be made up for trial withou
notice by the pleadings so as to eontne tn
proof to them. What votes are to be invest
gated on the ground Of illegality Ifnone ca
be made up on the allegationsin the relaIor
affidavit, (Which alone ean appear in th
writ of q,tO Udrra.tto) none can be made U
at all. This would seem TO be conclusive
But, further, every affidavit in any cai
ought to be so framed as that an indctmer
would lie upon IT If the party takingi swoi
falsely. This is the view taken by Butler
in the above cited case of Rex VS.. Sargen
In that case he said, The prosecutors swei
be found on their atlidavits."
Although, as has been said, the
does not appear 10 be al
system Of rules with respect
affidayits, there are, still, certain requir
ments with respect to some OF them that i
dictate what should be adopted as rules
cases of affidavit for quo i9arraIlto info
nations. In atlidayits to hold TO BAIL tn
is afIldavits Of cause of action, due ce
lainty is required. It is an inyarable al
regular rule that the affidavit must be
positive as the nature of the case "
admit Pomp, VS.. Ludwigson, , Bur. 90
l Sci Pr p. lO5. As the affidavit must
positive with respect to the actual exisJcn
of the debt so It must he certain as to /
description Of the cause OF action. ID. IL
The affidavit must be- clear, certain, a
correct IN the language in wh
it is drawn. 1t should be SUI
an oath as perjury can be assign
upon. The most trifiing naccuracy
clerical mistake, thetetore, will render it d
fective, as where an affidavit OF debt W
made that defendant it indebted instead
is indebted the court held it defective and
no affidavit, and discharged defendant
common bail, because no perjury cou
be assigned upon It, 10. 1l
Creeks VS.. Groneman, cited . VII. 225
In the Court of Common Pleas in EnglaI
supplementary aflidavits were allowed, b
"only allowed where the original afiida'
is in itself good one, such as perjury C
be assigned upon" 10. ll5.. This is sui
Client to show the degree Of c,
tainty required in allidayits OF eau