Year: 1862



 fering from the majority of the committee, beg leave to present this minority report.

 At the last session of Congress ma ority of the committee recommended the adoption of the following resolutions:

 lsr. Rcsorrcd, That thirty days be allowed the contestant 10 amend his notice if he so de- 1 sire.

 2vD. That the sitting member be allowed thirty days after such amendment is made, and notice thereof or after notice of contestants de- cliniDg to amend, in which to make and serve his answer thereto on contestant, setting out in said answer the grounds on which he rests the validity of his own, and denies the election of contestant

 3RD. That after service of the answer or ex- i piraton of the time limited therefor, sixty days l be allowed the parties to take evidence, which shall be confined to the allegations and denials contained in the answer and notice, and that l the same be taken and transmitted to the House | under the rules prescribed by the act of Cons | gross of the United States, approved February l 18th, 1851, entitled An act to prescribe the mode of obtaining evidence in cases of contest 1 cd elections.''

 A minority of the committee also made 9 report and recommended the adoption Of the following resolution: Rcsolred, That the Hon. J. P: Johnson is duly elected representative from the Third Congressional District of the State of Arkansas and as such is entitled to the seat in this House as the representative from said third district" This resolution was re- ected by vote of - in the affirmative, and

 - in the negative.

 The House thereupon adopted the resolutions reported by the majority of the committee, which in effect postponed the case for future proof to be taken under certain rules, allowing the par ties the privilege of amending their pleadngs, if they so decided. twill at once be perceived i by an examination of the report of the commit tee that they do not attempt to decide the ques- tion which at last must control thc action of the House, namely:

 " Did contestant CT the sitting member re- ccve a plularity of the votes cast at said elcc tion.' Indeed, the intination is pretty clear from the whole tenor of the report, in the opin- ion of the committee, that contestant had been elected, but had failed to show it by the highest grade or evidence of which the case was sus~ ccptible and therefore time was granted 10 ob- tain the proof.

 Immediately after tAis action CT the part of the uouse, tC-wit: on the 4ih of April, the con- tcstant avaiing himself of the privilege grant ed him, amended his notice. in which in precise and apt allegations he acquaints the sitting member of the grounds relied on for contest ing his seat A copy of this notice was served on defendant the same day The sitting mem Der failed or neglected to have copy of his answer served on the contestant within the time prescribed by the resolution of the last session, and the notice of the contestant as originally given, and as amended remain unanswered to this time. No excuse or apology was offered at the last session by the defendant for hi5 fails ure to answer the original notice, unless 1t be found in his objection to it's sutiiciency

 The objection to this notice was oyerruled by the committee and doubtless the defendant would have then been given an opportunity of answering had he asked leave to do SO.

 The committee, in their report at this session, state that the defendant "u upon his return to Arkansas prepared his answer now before the committee, copy of which he sent to the sher- if of Desha county, tho residence of Mr. John son, with instructions to deliver the same to him. This was not done and for bis failure to do 50 the sheriff returned the paper with the following endorsement.

 |" Came to hand pril 2-ih 1862.

 5. C. CLAYTON, .MeyV..

 I" Not cxecutedon account ot Ji,son P. John- son being absent from my county, May 27th 1852.

 s. c. CLAYTON, jHcriG."

 The impression left upon the mind from read

 

 contestants absence from his county was the cause of the failure of tho defendant 10 have his answer served, and yet tbo fact is We have the concurrent written testimony of both contestant and defendant, that the former was at home during the entire time within which the answer was to De served. See amended petition of contestant and written statement Q. facts ot de- fendant.

 What the committee mean in their report ty saying the snswer of defendant to the amended notice is < now before the committed we are at loss 10 conjecture. lift is meant to say it is or was before tue committee in the legal character Of response CT answer, we must be permitted tO say we did not So understand the action of the committee upon the contrary we understand t as ruled out of the case for all le gal purposes, other than as tending to show an effort on the part Of defendant to answer in time.

 The amended notice then remains unan> swered and by no fault of contestant. Indeed, the defendant has not even asked permission to file hs answer nuar pr0tanc. but stakes his de- fence entirely upon the ground that contestant has failed in his proof.

 The question arises what legal effect follows from the failure to answer? The notice and answer constitute the pieadlngs in this case, under tlo act of Congress governing. Why does the law require contestant to give the sit ting member notice in writing of his intention to contest the seat? Obviously that defendant may know tho ground relied on. so that when he answers he may force m issue to be tried by traves5ins the allegations of the notice, or may confess th0.n and set mp another avoidancc.- The whole office of all pleading is to form an issue, to be tried. If the defendant fails to an swer, controverting The allegations Of the cons testant, there is no issue to try.

 The well established rule of pleading, uni vcrsa in it's application, is that all material al legations must be regarded as admitted until denied. The material allegation of the notice is, that contestant received q plurality of eight votes in the district. It is not deniod-.must it not be taken to be true? Does not every rule of pleading known to the books, as well as every rule of logia known to the logician, require it to be regarded as established? If taken as true, what judgment shall the House, acting here as il doesa in quasi judicial character, render? We insist it is compelled to decide against tho right of the sitting member to the seat. This consequence must follow, unless every rule e. pleading and logic is set at def auce. Tn deciding that the sitting member is not legally entitled 10 the seat t hy no means follows that tha ccntastagt is. The judgment ,la.. Gusts tho sitting member IS one thing, the judgment that gives the seat to the contestant is essentially different thing. Each House