STONE, J.
We do not entertain a doubt of the correctness of the decision of the circuit court, in denying to appellant the right to a trial de novo in that court. The sections of the Code which give the right of appeal, first from the probate to the circuit court, and afterwards from the circuit to the supreme court, are, in substance, identical. We know of no principle of construction which will authorize us to discriminate between the effect of these several appeals. — Code, §§ 334, 335, et seq.
Section 337, which relates to each of these classes of appeal, authorizes “the clerk of the appellate court, if the decision is against the appellant, [to] issue execution for the costs of the appeal, agaiust such securities.” The phrase, “ costs of the appeal,” is very inappropriate to convey the idea of costs of a trial de novo. They express with precision the meaning of the legislature, if the appeal to the circuit court be triable on the record alone.
Another reason: Section 317 of the Code provides, that when the judge of probate “ is incapacitated, under section 560 of this code, from trying such contests,” the trial must be transferred to the circuit court. Sections 318 and 319 of the Code direct how such trial is to be conducted, and, among other things, authorize the circuit court, “for cause, to continue such contest to a day after the termination of the circuit., or to the next succeeding term.” Now, the language of these sections clearly makes it the duty of the circuit court, in cases where the judge of probate is incapacitated to try the case, to hear the testimony, and try the facts; and it may even adjourn the trial to a day in vacation. Section 834, and those following, contain no such provisions, nor can any such be implied from them.
[2.] We think the statement filed by the contestant in [157] this case is substantially sufficient. — Code, §§ 273, 279, 280. The notice was also sufficient, so far as the action of the contestant is concerned.- — § 277. True, the statement would have conformed more strictly to the statute, if it had affirmed in terms that Mr. Wall had been declared elected. — § 273. The averment is, that Mr. Wall was the successful candidate, which is substantially the same thing.
[3.] A question, very important in practice, arises upon the construction of sections 275 and 277 of the Code. Section 275 clearly contemplates, that in a contest on account of illegal votes received, or legal votes rejected, the real issue is, whether the party whose election is contested, or some other person voted for, received the greater number of legal votes, or would have received the greater number, if all the legal votes offered had been received and counted. Under this section, both parties are, or may become, actors. Section 277 declares, that “ no testimony must be received of any illegal votes, or the rejection of any legal votes, in any contested election, unless the party contesting has given to the adverse party notice in writing of the number of illegal votes, and by whom given, or the number of legal votes rejected, and by whom offered, which he expects to prove on the trial.” Section 278 fixes the time of legal notice; namely, “at least ten days before the trial.”
The literal import of the language above copied will exclude all evidence as to the legality of votes given or rejected, unless notice be given. It does not discriminate between votes given or offered for either the one or the other candidate. The language is general — “ no testimony must be received.” The contingency, on which this prohibition is to be inoperative, is, that the party contesting has given notice to the adverse party. A literal construction of this language would require, that the party contesting shall give notice to his adversary of the votes, as to the legality of which that adversary is to be permitted to offer testimony. A statement of this proposition is its refutation. We think we carry out both the spirit of the law, and the iutention of the legislature, by holding that each [158] party, when he becomes actor, shall give notice of the votes given to his competitor, which he proposes to assail as illegal, and of the legal votes offered for himself and rejected. — Petty v. Walker, 10 Ala. 379; Stewart v. Hargrove, 23 Ala. 429.
[4.] The question last above considered does not justify a reversal of this case. No vote which had been cast for Griffin appears to have been rejected, and no vote which had been offered for Wall and refused, was received and counted on the trial of the contest before the probate judge. The decision of the probate judge on this question was, then, error without injury. — Dunlap v. Robinson, 28 Ala. 100; Smith v. Martin, 18 Ala. 819.
[5.] We do not propose to consider the correctness of the several rulings of the probate judge on the pleadings, further than to say he correctly overruled the demurrer to contestant’s statement. The Code does not require that the pefson, whose election is contested, shall plead to the statement, and we think no plea necessary. If he desire to offer testimony, as to votes which he alleges were illegally given to an opposing candidate, or as to legal votes offered for himself and rejected, he secures that right to himself by serving notice according to sections 277 and 278 of the Code.
The record does not inform us of the final ruling of the probate court, except in a few particulars, and in the general result. We deem it unimportant to decide each and every point that was raised on the admissibility of evidence. We will lay down a few rules which we think will be sufficient to direct the probate judge on another trial.
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STONE, J.
We do not entertain a doubt of the correctness of the decision of the circuit court, in denying to appellant the right to a trial de novo in that court. The sections of the Code which give the right of appeal, first from the probate to the circuit court, and afterwards from the circuit to the supreme court, are, in substance, identical. We know of no principle of construction which will authorize us to discriminate between the effect of these several appeals. — Code, §§ 334, 335, et seq.
Section 337, which relates to each of these classes of appeal, authorizes “the clerk of the appellate court, if the decision is against the appellant, [to] issue execution for the costs of the appeal, agaiust such securities.” The phrase, “ costs of the appeal,” is very inappropriate to convey the idea of costs of a trial de novo. They express with precision the meaning of the legislature, if the appeal to the circuit court be triable on the record alone.
Another reason: Section 317 of the Code provides, that when the judge of probate “ is incapacitated, under section 560 of this code, from trying such contests,” the trial must be transferred to the circuit court. Sections 318 and 319 of the Code direct how such trial is to be conducted, and, among other things, authorize the circuit court, “for cause, to continue such contest to a day after the termination of the circuit., or to the next succeeding term.” Now, the language of these sections clearly makes it the duty of the circuit court, in cases where the judge of probate is incapacitated to try the case, to hear the testimony, and try the facts; and it may even adjourn the trial to a day in vacation. Section 834, and those following, contain no such provisions, nor can any such be implied from them.
[2.] We think the statement filed by the contestant in [157] this case is substantially sufficient. — Code, §§ 273, 279, 280. The notice was also sufficient, so far as the action of the contestant is concerned.- — § 277. True, the statement would have conformed more strictly to the statute, if it had affirmed in terms that Mr. Wall had been declared elected. — § 273. The averment is, that Mr. Wall was the successful candidate, which is substantially the same thing.
[3.] A question, very important in practice, arises upon the construction of sections 275 and 277 of the Code. Section 275 clearly contemplates, that in a contest on account of illegal votes received, or legal votes rejected, the real issue is, whether the party whose election is contested, or some other person voted for, received the greater number of legal votes, or would have received the greater number, if all the legal votes offered had been received and counted. Under this section, both parties are, or may become, actors. Section 277 declares, that “ no testimony must be received of any illegal votes, or the rejection of any legal votes, in any contested election, unless the party contesting has given to the adverse party notice in writing of the number of illegal votes, and by whom given, or the number of legal votes rejected, and by whom offered, which he expects to prove on the trial.” Section 278 fixes the time of legal notice; namely, “at least ten days before the trial.”
The literal import of the language above copied will exclude all evidence as to the legality of votes given or rejected, unless notice be given. It does not discriminate between votes given or offered for either the one or the other candidate. The language is general — “ no testimony must be received.” The contingency, on which this prohibition is to be inoperative, is, that the party contesting has given notice to the adverse party. A literal construction of this language would require, that the party contesting shall give notice to his adversary of the votes, as to the legality of which that adversary is to be permitted to offer testimony. A statement of this proposition is its refutation. We think we carry out both the spirit of the law, and the iutention of the legislature, by holding that each [158] party, when he becomes actor, shall give notice of the votes given to his competitor, which he proposes to assail as illegal, and of the legal votes offered for himself and rejected. — Petty v. Walker, 10 Ala. 379; Stewart v. Hargrove, 23 Ala. 429.
[4.] The question last above considered does not justify a reversal of this case. No vote which had been cast for Griffin appears to have been rejected, and no vote which had been offered for Wall and refused, was received and counted on the trial of the contest before the probate judge. The decision of the probate judge on this question was, then, error without injury. — Dunlap v. Robinson, 28 Ala. 100; Smith v. Martin, 18 Ala. 819.
[5.] We do not propose to consider the correctness of the several rulings of the probate judge on the pleadings, further than to say he correctly overruled the demurrer to contestant’s statement. The Code does not require that the pefson, whose election is contested, shall plead to the statement, and we think no plea necessary. If he desire to offer testimony, as to votes which he alleges were illegally given to an opposing candidate, or as to legal votes offered for himself and rejected, he secures that right to himself by serving notice according to sections 277 and 278 of the Code.
The record does not inform us of the final ruling of the probate court, except in a few particulars, and in the general result. We deem it unimportant to decide each and every point that was raised on the admissibility of evidence. We will lay down a few rules which we think will be sufficient to direct the probate judge on another trial.
[6.] The questions raised on the recount of the votes at the Nixburg precinct, are not so clearly and fully presented as that we can safely pronounce upon them, in all their bearings. Under the Code, (§§ 209, 210,) if the inspector’s and clerks do their duty, iu recording the names of the voters, and the number on the poll-lists, and the number on the ballots, the means of correcting errors and mistakes in counting out the ballots will be readily furnished to the court trying the contest. His duties are [159] pretty clearly shadowed forth in sections 222 and 223 of the Code. "We do not say the court should confine his investigations to what appears on the poll-lists and ballots. He certainly should hear any legal evidence of errors or mistakes in either. In the absence of explanations, however, he should be controlled by them. In case of discrepancy between the number of names on the poll-lists and the number of ballots found in the box, he should endeavor, by an examination of the several ballots, and a comparison of them with the poll-lists, aided by any other legal evidence that may be offered, to ascertain the correct number of the legal votes given at that precinct. This is his highest duty. If more ballots are found in the box than there are names on the poll-list, he should examine and compare the numbers on each. If ballots are found without numbers, he should, if possible, ascertain whether the supernumerary ballots are part and parcel of some other ballots properly numbei’ed, and severed from them by accident or design. If, on hearing the entire proof, there are ballots for which there are no corresponding voters on the .poll-lists, or established by other competent testimony, such ballots must be rejected. We add further, that under the Code, if after hearing all the testimony, and proper examination of the poll-lists and ballots, there remain an irreconcilable conflict between the number of voters and the ballots, the number shown by the poll-lists is entitled to more credit than the unexplained number of ballots found in the box. In announcing this as our conclusion upon the sections of the Code, we feel it our duty to state that, we have carefully examined the case of The State v. The Judge of the 9th Circuit, 13 Ala. 805. That case presented the simple question of the relative weight as evidence of the ballots found in the box, and the tally-lists or sheets made by the clerks in counting out. The poll-lists were not referred to, in that portion of the opinion which is relied on by appellee. — 13 Ala. p. 815. The statement of the facts, as made by the reporter, and the portion of the opinion we refer to, show this to be the case. The poll-lists stand on different ground. Unexplained, they have more sane-[160] tions of verity, than ballots in the box, for which there are no names or numbers on the poll-lists.
[7.] The bill of exceptions recites, that it contains all the evidence. Some of the supernumerary votes found in the box at Nixburg are not sufficiently accounted for, as far as we have been able to understand the record. These votes appear to have been counted for Mr. Wall; and, as the facts appear to us, this was an error to the prejudice of Griffin. We are not informed as to the number of votes found for either of the candidates on the final count, and hence we are not able to say that this error was harmless. On another trial these questions may be made plain. See Mims v. Sturdevant, 23 Ala. 664.
The testimony found in this record, which relates to the vote offered by Meadows, is so unsatisfactory and conflicting, that we are unable to say there was error in rejecting it. It is left in extreme doubt, for which of the candidates he would have voted, if he had been allowed the privilege.
[8.] The rules to be observed in reference to questions of disputed domicile or residence, are considered and settled in the cases of The State v. Hallet, 8 Ala. 159; State ex rel. v. Judge of the 9th Circuit, supra; Boyd v. Beck, 29 Ala. 703. The principles settled in those cases will enable the probate judge to determine all questions of this kind likely to arise on another trial. The letters received from Trawick, while he was in Shelby county, tended by their post-marks to show where he then was. Evidence of them, ought to have been received. If, however, the evidence of Trawick be believed, that he went to Shelby for a temporary purpose only, with the intention of returning, he did not thereby forfeit his domicile.
[9.] The court rightly rejected the testimony of Loyall, offered to contradict the testimony of Pennington. Pennington had been introduced by contestant as his witness, and he could not impeach his own witness.
[10.] Beputation, or common report, of either the pi’esent or former residence of any voter, is not legal evidence. Neither are declarations of a party, that he has lived in a particular place or county, evidence that such is the fact, [161] when the question arises in a contest between other persons. "What a party says on leaviug home, or immediately previous thereto, or while on a journey, explanatory of the act or object of leaving home or performing such journey, is admissible evidence as part of the res gestae, whenever the act itself is material evidence. So, as a general rule, whenever in any controversy, it is permissible to prove any act of a third person, the declarations of such third person, accompanying the act, and explanatory thereof, are also admissible. "What degree of credit the accompanying declarations shall receive, must depend on their reasonableness and consistency. — Pitts v. Burroughs, 6 Ala. 733; Stallings v. Newman, 26 Ala. 300; Gillespie v. Burleson, 28 Ala. 551; Scott v. The State, 30 Ala.
The judgment of the circuit court, affirming the decision of the probate judge, is reversed; and this court, proceeding to render such judgment as the circuit court should have rendered, doth hereby order, adjudge, and decree, that the judgment of the probate court is reversed, and the cause remanded to the probate judge of Coosa, to be proceeded in according to the principles of this opinion. — Code, § 3034.
Let the costs of this appeal, and of the appeal to the circuit court, be paid by the appellee. The clerk of this court will certify this reversal'to the circuit court, and to the probate judge of Coosa.