THIS case was on a rule to show cause why an information in the nature of a writ of quo warranto should not be filed against James Martin for usurping the office of sheriff of New Castle County, which was granted upon the petition of Purnal J. Lynch, supported by the affidavit of Thomas Toy, hereafter referred to, stating that at the general election held in New Castle County on the 7th day of November, A.D. 1882, James Martin, the respondent, George J. Pennington and the petitioner were candidates for the office of sheriff of New Castle County; that by the official count made by the board of canvass it appeared that the said James Martin had received seven thousand nine hundred and eighty-six votes, the said Pennington sixteen votes and your petitioner seven thousand nine hundred and seventy-seven votes, and that two scattering votes were cast for other persons named in the petition; and that said Martin had received a plurality of nine votes over your petitioner, that a majority of the board of canvass certified to the Governor of the State that said Martin had been duly chosen sheriff of said county, that the governor, on the 16th day of November, commissioned Martin as sheriff, and that the later had subsequently qualified by taking the oath of office and entering into recognizance as required by law; that in four election districts of said county, named in said petition, there were eighty-five ballots cast for said Martin by persons who were not legally qualified
to vote, all of which ballots were counted for him; that after deducting the said illegal ballots from the whole number counted for him, there would remain a plurality of seventy-six votes for said office in favor of your petitioner. The petitioner further averred, upon information, that about two hundred other ballots were cast for the said Martin by persons not legally qualified to vote, and that he was not duly elected to said office, but had unlawfully usurped the same. The jurat to the petition was in the usual form, and stated that what was contained therein, so far as it concerned the petitioner's own act and deed, was true, and that what related to the act and deed of any other he believed to be true. In support of the petition there was only one affidavit filed, that of Thomas Toy, who deposed that on the day of the said election he was present at the voting place in Christiana north election district from the opening to the closing of the polls on that day, and that on that day and at the said voting place there were cast thirty votes for James Martin for the office of sheriff of said county by persons who were not then residents of said election district, and that none of said persons had within two years next before said election paid a county tax which had been assessed at least six months before the said election, but, in fact, they voted in said district on forged tax receipts.
Bradford (Higgins with him) for the respondent. The respondent has, in showing cause under the rule laid, filed his own affidavit denying the allegation of the petition, and in support of that affidavit has filed the respective affidavits of James J. Vincent, the inspector of election in Christiana north election district, Charles Green, one of the judges of election in said, election district, Henry Du Pont, Joseph Knox and Benjamin F. Sheppard, contradicting the statements in Toy's affidavit as will hereafter more fully appear. The granting of leave to file an information in the nature of a quo warranto, both in this country and in England, is within the sound discretion of the court upon consideration of the particular circumstances of each case. In Rex v. Sargent, 5 T. R., 466, where the issue was as to the residence
of the defendant, Lord Kenyon, Ch. J., says: "I cannot forbear reprehending the manner in which the prosecutor's case has been laid before the court; the affidavit on his part contains nothing but a loose general charge against the defendant. When Lord Mansfield first came into the court he found that informations in the nature of quo warranto were had almost for the asking; but he soon saw the impolicy and vexation of such a rule, and therefore before he granted any such application he canvassed the case, and unless he found strong grounds for questioning the defendant's title, he (and the court sitting with him) always refused to let the information go. Such is the conduct which I am inclined to pursue, and therefore I shall consider all the circumstances of this case." Rex v. Wardraper, 4 Burr., 1964; Rex v. Dawes,Ibid., 2022. In the case of Commonwealth v. Jones, 12 Pa. St., 365, on an application to file an information to oust a mayor, Gibson, Ch. J., says: "Now it is well known that an information at the suggestion of a relator was always preceded in this court by a rule to show cause, as it is in the Queen's Bench at this day. The court itself stood as an inquest between the accuser and the accused. No man would submit to the dispenser of corporate patronage, if nothing else were between him and vexatious prosecution than the magnanimity and justice of the displaced officer or disappointed applicant. The highest magistrate in the government, or the lowest individual in the community, may not be put to answer before he has had the inculpatory evidence submitted to an inquest; in the one case the House of Representatives, in the other a grand jury, and it would be strange if the law did not give the first magistrate of a great municipal corporation the same protection. The code of the freeman gave it to him, and the representatives of freemen have not taken it from him. Whatever change was made in matters of form, the legislature held fast to the substance of that jurisprudence which is the only sure foundation of national liberty."
The affidavits upon which the application for leave to file an information in the nature of a quo warranto is based should contain positive allegations of the facts upon which the relator seeks
to assail the title of the respondent, and should be complete and sufficient in every respect. High on Ex. Leg. Rem., § 733; Cole on Informations, 178, 182; Rex v. Sargent, 5 T. R., 466. And where the affidavits in support of the application are in themselves insufficient, the court will discharge the rule; as where the allegations of the affidavits are made on information and belief merely. Rex v. Newling, 3 T. R., 314; High on Ex. Leg. Rem. § 733. Or where the affidavits suppress some material fact. Rex v. Hughes, 7 B. C, 708, 719; Cole on Informations, 182, 190. Or where the application and affidavits unfairly state a case against the defendant in such manner that he is unable to answer it, although his title be good and he could make perfect answer to the case if fairly stated. Rex v. Jefferson, 5 Barn. Ad., 855.
In showing cause against the rule it is competent for the respondent to meet by counter affidavits the case made by the relator. High on Ex. Leg. Rem., § 738; Cole on Informations, 189; People v. Waite,70 Ill., 25; People v. Railroad Co., 6 Reporter, 457. And where the affidavits on the part of the relator are clearly and satisfactorily answered by those on the part of the respondent, the rule should be discharged. Rex v. Rolfe, 4 Barn. Ad., 840; Rex v. Orde, 8 Ad. El., 420; Reg. v. Quayle, 11 Ad. El., 511; Rex v. Sargent, 5 T. R., 466.
In the exercise of its sound discretion the court should discharge this rule because of the insufficiency of Toy's affidavit considered by itself and without reference to the counter affidavits. For it suppresses the names of the alleged illegal voters, and without their names it is impossible for the respondent to meet this charge made by the relator. It appears that there were eight hundred and twenty-one votes cast for the office of sheriff at the election in question in the said Christiana north election district, and it would be utterly impossible for any one to pick out the thirty votes alleged in Toy's affidavit to have been cast illegally. It could not be done if the voting had been by open ballots or viva voce. A fortiori it could not be done after an election held as this was according to the polity of this State by
secret ballot, and where no legal voter can be compelled to disclose for whom he voted. State Const., art. 4, § 1, Del. Laws, 16 vol., 332. If it were competent for the respondent to adduce oral evidence at this hearing, it would still be impossible for him by reason of the secrecy of the ballot to meet Toy's affidavit owing to its generality and uncertainty. It is no answer that he shows cause by affidavits, and not by oral evidence; for the same insurmountable obstacle presents itself to him. The respondent is called upon to show cause why this rule shall not be made absolute; therefore he has a right to show cause, and because he has this right the relator is bound to so state his case in his affidavit that the respondent can show cause, if any he has; and if the names of the alleged illegal voters had been given, the respondent would have had the means of meeting the charge and refuting that allegation by showing the legal qualification of every one of them, not only in respect to residence, but assessment and payment of tax; or if that could not then have been shown, the contrary could have been to the entire satisfaction of the court; but without their names given, where do we all now stand, and must stand, with regard to the truth or falsehood of that allegation? Entirely in the dark. No sanction for such a course as this is found in the analogy or ruling in the cases already cited of Rex v. Orde, 8 Ad. EL, 420, and Rex v. Sargent, 5 T. R., 466. Nor should we omit to say that if that had been done, it might then possibly have been shown that although illegal, a majority, if not the whole of them, were cast for Lynch, and not for Martin. The court will not impose an impossibility upon the respondent, and before it will permit an information to be filed, will imperatively require the petitioner to fairly and fully state his case so that it can be fairly met and confronted on the other side, and in such a manner as to best afford the means of ascertaining the truth and the facts on which the justice and equity of the case depends. And as we see was done in the case cited of Rex v. Jefferson, 5 Barn. Ad., 855, in which this principle was fully recognized. In that case the scope of inquiry was limited to the list, of names contained in the relator's supporting affidavits, but here where the relator needs only to
prove according to his allegation the disqualification of thirty voters, he seeks to impose upon the respondent the almost endless task and burden of searching, ascertaining and showing to the satisfaction of this tribunal the legal qualifications of the entire poll list of eight hundred and twenty-one votes at the election in question. In the case of Rex v. Hughes, 7 Barn. C, 708, 719, it was held that the court should be more reluctant to make the rule absolute where the insufficiency of the relator's supporting affidavits is intentional and arises out of his suppression of material facts. If Toy does not know who the alleged illegal voters are, his affidavit is false and worthless, and the relator has no case. But if he does know, as was alleged by counsel for the petitioner in open court at the hearing, then the relator has wilfully suppressed the names of the alleged illegal voters, and is not entitled to any consideration at the hands of the court.
But the counter-affidavits of the respondent make more manifest the insufficiency of the relator's case as it is now presented to the court, for these affidavits show him to be unworthy of credit by directly contradicting his statement as to his presence at the polls, during that day. They, further, clearly show that it was impossible for him to know that illegal ballots were cast for Martin, if any were cast for him. They also conclusively show that Toy's affidavit could not have been based upon anything better than information and belief, which would be insufficient to sustain the rule. Nothing could be more erroneous than to contend that when a relator suggests merely a case coming within the jurisdiction of the court, and files an affidavit, however general and uncertain it may be, alleging jurisdictional facts, leave will be given to file the information. All the authorities recognize that counter-affidavits may be filed by the respondent, but of what conceivable use could such counter-affidavits be if the court were concluded by the relator's affidavit? Even where the relator's affidavits are unobjectionable upon their face, if counter-affidavits be filed, a question of fact is necessarily raised and presented to the court for its determination. Upon consideration of the affidavits on both sides, if
the court deem that a fair question of fact, attended with fair and reasonable doubt, has been fairly raised in such manner as to afford the respondent the opportunity to meet the case against him, the rule may be made absolute, but not otherwise. No more than this is meant by Lord Kenyon in what he said in Rex v. Mein, 3 T. R., 596. A review of the authorities will show that the courts have been governed by the peculiar circumstances of each case. For instance, Lord Kenyon himself, in Rex v. Sargent, 5 T. R., 466, discharged the rule upon affidavits of the respondent showing residence, as well as upon the insufficiency of the relator's affidavits as to residence. In Rex v. Orde the rule was discharged upon affidavits of respondent showing residence. In Rex v. Rolfe, where the question was as to the validity of an election held on particular days, it was said by Parke, J., "There might be a sufficient prima facie case to call on the party for an answer as to those particular days; but if that answer is given, enough is done to meet the application The rule will therefore be discharged."
The court will not hold that a doubt has been fairly raised when the relator's affidavits are of such a nature as to preclude the respondent from all opportunity to answer the. case made against him, or where the relator's witnesses in their affidavits swear only to conclusions of law, and not to substantive facts out of which those conclusions arise.
The court should be reluctant to make the rule absolute in this case, because the relator's petition shows that the prima facie title of the respondent is complete; and in the next place, owing to the peculiar rule respecting the burden of proof in quo warranto proceedings. High on Ex. Leg. Rem., §§ 712, 716.
Bates (Lore with him) for the petitioner.
The case presented for the consideration of the court upon the papers raises two questions: 1. It is alleged in the petition, and admitted in the respondent's answer, that the certificate of the board of canvass upon which the commission was issued to the respondent by the governor was signed by only eighteen out of thirty-two inspectors who composed the board of canvass. This
fact being admitted, there is raised the simple question of law as to whether the statute (Rev. Code, 124, chap. 18, § 29) requiring that all of the inspectors present should sign the certificate of election, is satisfied by the signature of eighteen out of thirty-two. This is a question of law proper to be raised in such a proceeding, and should not be determined in favor of the respondent upon a rule to show cause, inasmuch as no writ of error would lie, and it is held that, upon a matter of doubtful law, the court will not usually decide in a summary manner upon argument of the rule, but will make a rule absolute, in order that the question may be raised upon the pleadings and finally determined. Cole on Crim. Inf., 192 (56 Law Lib.). 2. The other objection to respondent's title is, that a number of illegal votes were cast for him, which, if deducted from his aggregate vote, would leave a plurality of votes in favor of the relator. It is manifest that, under our system of jurisprudence, this proceeding is the only one available for making an inquiry into the result of a popular election, as determined and announced by the legal canvassers.
It is certainly very important that there should be some method to bring the result of popular elections under a course of judicial scrutiny, as opposed to the necessarily ministerial adjudication of the election which is made by the board of canvass. Whether this is the best system or not is not what we have to consider. The fact remains, that to the defeated candidate for an office so high as that of sheriff — the highest office in the county — the only method of investigating the data on which the result ascertained by the board of canvass is predicated is by an application to this court, such as we have made here. It is apparent, from the very nature of the* proceedings, that this matter now before the court is not a trial either of the facts or of the law applicable to this case. The proceedings on a quo warranto information are only permitted to be entertained by leave of the court, differing in that respect from other actions respecting personal rights of property not for trial at that time, but only in order that the court may see in advance that it is
such a case as should be properly submitted for trial under the exercise of that jurisdiction.
There are difficulties which your honors will understand very well from the merest suggestion. There would be difficulties in presenting an application of this kind on any species of proof which would be required in an ordinary trial of any issue of fact before a court and jury. It would be almost impossible to support an application of this kind with such proof as would be required in such a trial of any issue of fact before a court and jury. The present case illustrates that difficulty, perhaps, as well as any which could be put. The allegation here is, that the acting sheriff received his apparent majority by virtue of the illegal act of the parties who were supporting his election. Manifestly, the difficulties in the way of presenting before your Honors voluntary proofs of the acts of parties who have been so much interested in the election of the one candidate or the other as to violate the law in order to secure his election, must be so great as to render it practically impossible, if you apply to such a hearing as this the rigidity of procedure which has been contended for on the other side. The procuring of affidavits voluntarily made in support of this petition is one thing; the bringing up of parties without their consent by process of the court, and compelling them to testify, is a very different thing. The purpose of the present application is simply for the court to ascertain whether it is a case proper for the exercise of this jurisdiction. The application calls upon the respondent, requiring him to put his right beyond dispute. At the return of the rule, unless a respondent "shows such cause on the return as to put his right beyond dispute, the rule for the information will be made absolute, in order that the question concerning the right may be properly determined." High on Ext. Leg. Rem., § 731. "If these affidavits, and the cause shown, do not put the matter beyond dispute, the rule will be made absolute." Bull. N. P., 210; People v. Richardson, 4 Cow., 106. The rule has been very clearly stated in Rex v. Mein, 3 Term, 596, by Lord Ch. Just. Kenyon: "Lastly, it is objected, that the evidence of the defendant outweights that of the relator. Now, admitting it to
be so, that has never been held to be an answer to an application of this kind."
"Where there is evidence on both sides, the jury are the constitutional judges on which side the balance inclines. All that we are to look to is that a fair doubt is raised, and that the party applying comes with clean hands and in proper time."
Upon this point it must be remembered that "if the affidavits on both sides be conflicting, the court does not usually take upon itself to decide a doubtful matter of fact upon affidavits." Cole on Crim. Inf., 191 (56 Law Lib.). This text writer, on the preceding page, enumerates the objections which may be set up against a rule to show cause, and it will be observed that all the objections named are rather of a technical character, going to the jurisdiction, or were such defences as render the proceeding inapplicable. In none of them is there any support for the doctrine that the hearing of this rule is a trial of the merits of the case; neither is there to be found any support for the contention that the affidavits filed by the relator should be drawn with the precision of special pleading, or should contain the details of evidence.
In the present case, if the truth of the relator's affidavits be admitted, there can be no question as to their sufficiency. This test shows that the effort of the defence is to raise an issue as to the truth of the facts sworn to in behalf of the application, and it is just such a controversy as, upon the authorities cited, will not be determined upon a hearing like this. But an examination of the affidavits filed by the respondent shows that they do not, in fact, contradict the relator's affidavit in any material point, and even in the immaterial point, as to the presence of Mr. Toy which was much dwelt upon in the argument, the contradiction is apparent and not real. Toy's affidavit was that he was all day at the voting place. The respondent's affidavits which apparently were all originally framed in the same language, state that he was absent from the polls at different periods during the day; but Mr. Du Pont's affidavit, drawn like the others, is interlined in such manner as to show that what the affiants meant by absence from the polls was absence from the window. Doubtless,
if they bad all read their affidavits with the same care that Mr. Du Pont did they would have been corrected in like manner. As to the material points, Toy swears positively that there were cast thirty votes by persons who were not residents of the election district. The counter affidavits merely set forth that the affiants did not know or believe that there were any illegal votes cast. The respondent's affidavits are negative in their character, and must be subject to the general principle applying to negative testimony. It was objected on the other side that the statement in Toy's affidavit was a conclusion of law. That it was not so, is readily illustrated. If he had sworn simply that thirty illegal votes were cast, that would have been a conclusion of law. On the contrary, he states the specific facts which made the votes illegal; that a certain number of votes were cast by persons not residents of the election district. But it was urged that this statement of fact was not sufficiently specified. These affidavits are not pleadings, and no authority has been shown for the proposition that it was necessary to specify the names of the illegal voters. If there were such necessity, it is impossible that the text writers, one in England and one in this country, should have absolutely overlooked this requisite; nor is it possible to assume that the research of the counsel for the respondent would not have found such a case, if there were one. Having set up this necessity as an answer to our affidavits, it is incumbent upon them to satisfy the court that such is the law. Nor upon principle can any reason be given for such particularity at this stage of the case. The purpose of such affidavits is not specification, because no question of fact is to be tried, and the object of specification in all cases is to advise the other party of what he must be prepared to meet by witnesses at the bar of the court. But the objects of affidavits in this case is to inform the court of the nature of the objection to the respondent's title, and not to advise his counsel what evidence they must be prepared with in support of or against the alleged defect of title at a trial of the facts. Upon the consideration of such a rule the first inquiry is whether the office is one for the exercise of this jurisdiction? That it is so was admitted.
The next inquiry is as to the nature of the defect in the title.
Inasmuch as our application admits that the respondent holds under a commission from the government issued upon a certificate from the board of canvass, it is only necessary that our affidavits should satisfy the court that the defect of title upon which we rely is such an objection as would, if supported by evidence, warrant an investigation as against the governor's commission. That defect is that illegal votes were cast for Martin in sufficient numbers to reverse his majority. But it was argued that the allegation of illegal voting was not sufficiently specified and could not be met. The answer to this is that it was not required to be met at this time. If it be held that the respondent's affidavits sufficiently deny the allegation that thirty illegal votes were cast, then there is presented to the court a conflict of evidence which upon the authorities is a matter proper to be investigated upon a trial. If it were the practice of the court to permit the respondent to bring witnesses at the bar of the court to controvert the allegation of the petition and affidavits accompanying it, then the objection raised that the allegations were not sufficiently specified, would be a good one. The necessity of the minuteness contended for would be a question to be determined upon the pleadings hereafter. It would be contrary to public policy to require in such a case that there should be laid before the court here the names, even if we were able to do it, of the parties who voted illegally in Christiana hundred. If we were able to specify the names of every one of the thirty alleged illegal voters, we ought not now to be compelled to disclose them, in view of the fact that these men being illegal voters, the disclosure of their names would make it absolutely impossible to reach them at the time they were required by the process of this court. The fact relied upon is that thirty illegal votes were cast. The affidavit is positive to that effect; it is offered in" good faith, with the expectation that when the proper time conies with the aid of the process of this court we can make satisfactory proof of it.
The sources of knowledge of an affiant are not the proper subject of investigation here. It is an unprecedented suggestion
that upon a positive affidavit required for the institution of legal proceedings the court should be asked to speculate as to the sources of the affiant's knowledge. What object would be gained in this proceeding by giving the names of the voters, even if we were able to do it? None at all. It would stand before the court just as it does now; it would not vary the issue here or the question presented to the court. There would remain the question of fact to be tried upon the information and subsequent pleadings. There is therefore nothing to be gained by greater specification, and that should not be required unless some good reason be given for it. It could have no effect except to encumber the record here with details of proof which should be properly brought out upon the trial. It was urged that, inasmuch as the burden was cast on the respondent of proving his own election, the affidavit of Toy was one that could not by any legal possibility be met. Upon this foundation an ingenious argument was presented which formed the main objection to the sufficiency of the relator's affidavit. The argument rests upon a fallacy. It is not necessary for the respondent to prove his own election; the burden which the law casts upon him, if leave be granted to file an information, is to show by what warrant he exercises the office of sheriff. He relieves himself of that burden and makes a good plea in behalf of the information, when he pleads the ascertainment of the plurality of nine by the board of canvass, and showing the commission of the governor in pursuance of it. In fact it is doubtful whether he would be required to do more than to plead his commission. Upon such a plea the State could with safety neither demur nor take issue; it would be compelled to reply by way of confession and avoidance, and to set up affirmatively such frauds or illegal voting, or other matter of that nature, as would be sufficient to afford a satisfactory answer to the plea, and upon such a replication the burden would rest upon the State to prove the facts alleged in it.
Sufficient evidence to support a plea of the respondent's commission exists upon the records of this court, and he therefore is in a position, as shown by the petition itself, to shift from himself the burden concerning which so much was said, without
bringing a single witness. Certainly, whatever burden rests on himin limine is met by the production of his commission. That this view is correct is clearly shown by the case of The People v.
Vanslyck, 4 Cow., 297. In this case the pleadings are reported in full. The respondent, who was a sheriff, pleaded simply his election and qualification, and this was treated as a good plea in bar and replied to specially in a variety of replications all of which confessed the election and set up matters by way of avoidance. Every consideration of public policy demands that the purity of the elective franchise shall be maintained and fraud exposed and punished. This can be most successfully accomplished by such a judicial inquiry into election frauds, as will deter like attempts in the future. It is therefore important that mere technicality should not be permitted to interpose against the fullest and freest examination of such frauds in any case.
The decision of the court in this case will be final. If, by such decision, the rule shall be discharged upon a mere technical point, it may deprive the relator of an office to which he may have been fairly elected, and confirm the title of the respondent who it is claimed is holding his office by reason of fraud. The importance of the decision is therefore greatly enhanced by the fact that it cannot be reviewed, and determines summarily the right to an important office without giving the relator an opportunity to prove the facts upon which his right is based.
This is an application by Purnal J. Lynch, who was a candidate for the office of sheriff of New Castle Comity at the general election, held on the 7th day of November last, for a rule upon James Martin — also a candidate for that office at the same time, and who having received a certificate of his election from the board of canvass, and a commission from the governor, and also entered into recognizance 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 office — to show cause why an information in the nature of a quo warranto should not be filed
and a writ issued requiring him to show by what warrant he holds the said office. The motion is supported by affidavits.
In showing cause against the rule, the respondent's counsel filed affidavits in behalf of their client.
They also took the ground, among other points, that the affidavits in support of the rule are in themselves insufficient for the purpose. If that be so, then the rule must be discharged.
There does not appear to be any system of rules with respect to affidavits, but it may be taken as a fact that in all affidavits filed as the foundation of proceedings to open election by ballot and inquire into the right to vote of persons who did vote thereat, there should be set forth the names of the alleged illegal voters, where illegal voting is the allegation; if their names are unknown it should be so stated, and some mode or means of identification given, for the reason that the affirmative of the issue in quo warranto of this character is upon the respondent. Although it may be sufficient for him, in his plea to the writ, to allege his commission, recognizance and qualification by having taken the oaths of office, yet upon a replication setting forth facts affecting the legality of votes cast or of 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, if it were sufficient simply to allege in the relator's replication that a 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 be made up by a traverse of that averment (as it would have to be if such an allegation in an affidavit were sufficient), would it 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 allegation The pleadings in quo warranto 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 elements of 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 of legal process, civil or criminal, and it must set forth facts in a direct, plain and circumstantial manner, in order to show the defendant just what he will be called upon to answer. And this is particularly true where, as here, affidavits may be answered by affidavits. Without particular statement, there is no means by which a defendant can do more than deny the allegation, such as it may be.
The relator in this case charges the casting of illegal ballots at several voting places, but he does not state the name of any voter who cast them, nor does the other affiant, Thomas Toy, with respect to those alleged by him to have been cast at the polls where he was present. Is not, therefore, the affidavit, in such case, but a loose, general charge of fraud and illegality, in the sense in which the phrase is used by Lord Kenyon in Rex v. Sargent, 5 T. R., 466? And we have not been pointed to any case where the names of the alleged unqualified voters were not set forth in the proceedings; in fact, I have seen but one case where the illegality of voting by ballot was the ground of the application, and in it (Rex v. Jefferson, 5 Barn. Ad., 855) lists of the alleged illegal voters appeared by affidavits. How is any issue to be made up by trial, without notice by the pleadings, so as to confine the proof to them? What votes are to be investigated on the ground of illegality? If none can be made up on the allegations in relator's affidavit (which alone can appear in the writ of quo warranto), none can be made up at all. This would seem to be conclusive.
But, further, every affidavit in any case ought to be so framed as that an indictment would lie upon it if the party taking it swear falsely. This is the view taken by Buller, J., in the above-cited case of Rex v. Sargent. In that case he said: "The prosecutors swear to no facts whatever. No indictment could be founded on their affidavits."
In this case what sort of indictment could be founded on the affidavit of either Lynch or Toy with respect to illegal votes, the material subject of it? Only one, and this would require the State to show affirmatively the right of every voter to take part in the election; it could not be done inferentially; it would
not be enough that no votes were objected to. The State cannot be debarred of her right to prosecute for perjury by defectively framed affidavits, nor can the respondent in this case be put to the trouble and expense of litigation to support his right to his office, unless he may know beforehand, from the prosecutor's affidavit, whose votes they are the legality of which he is required to maintain. The affidavits should show this definitely and although, as has been said, there does not appear to be any system of rules with respect to affidavits, there are still certain requirements with respect to some of them that indicate what should be adopted as rules in cases of affidavit for quo warranto informations. In affidavits to hold to bail — that in affidavits of cause of action — due certainty is required. It is an invariable and regular rule that the affidavit must be as positive as the nature of the case will admit. Pomp v. Ludvigson, 2 Bur. 655; 1 Sel., p. 105. As the affidavit must be positive with respect to the actual existence of the debt, so it must be certain as to the description of the cause of action. Ibid., 108. The affidavit must be clear, certain and correct in the language in which it is drawn. It should be such an oath as a perjury can be assigned upon. The most trifling inaccuracy or clerical mistake, therefore, will render it defective, as where an affidavit of debt was made that defendantin indebted, instead of is indebted, the court held it defective and as no affidavit, and discharged defendant on common bail, because no perjury could be assigned upon it. Ibid., 109; Reeks v. Groneman, cited 2 Wil., 225. In the court of common pleas in England supplementary affidavits were allowed, but "only allowed where the original affidavit is in itself a good one, such as perjury can be assigned upon." Ibid., 115. This is sufficient to show the degree of certainty required in affidavits of cause of action — which, in effect, the relator's affidavits are — and will make plain the remark of Justice Butler, before quoted.
Suppose the knowledge of the affiants not to be loose, as well as their affidavits, where was the difficulty in naming the illegal voters? How can we imagine, in fact, knowledge of illegal votes, and not at the same time knowledge of the names of those
who cast them? We cannot, for the name of every voter is announced audibly when he hands in his ballot. There was no difficulty, therefore, in giving the names of non-resident voters in this case. Neither could there have been any in the case of the alleged forged tax receipts upon which any one voted; for no valid receipts could be made by any person other than the" collector, and it was his duty to be present at the place of voting to receive taxes, from the opening to the closing of the polls, and he must be taken to have been there, no proof or suggestion having been offered that he was not.
Again, it appears, by the affidavit of Thomas Toy, that he was present at the place of voting in North Christiana district from the opening to the closing of the polls. Now, why did not he, or some other person of his side — for instance, the judge of the election of his politics — make objection to taking the votes of the thirty non-residents who used fraudulent tax receipts? It is not alleged in his affidavit that he or any one else opposed their voting, and (what is significant) it is not stated that no one knew of the fact of illegality of those thirty votes until it was too late to object. He would, most probably, have said so if such had been the fact. No objection was made, we may be sure, or proof would have been offered of the fact.
We have a case, then, of an application to make absolute a rule for a writ of quo warranto against a sheriff in office, with all the legal muniments of title and exercising its duties, upon two affidavits alleging no material fact which can be embodied in the writ in such a traversable shape as the rules of pleadings require, and upon which the affiants could be prosecuted for perjury if they swore falsely. The certainty required in an indictment could not be observed except by averring what is sworn to as a negative fact, which averment would open an inquiry into the legality of every vote cast at the North Christiana polls for James Martin, with no power to make any man tell how he voted. Such a requirement would be wholly impracticable in its execution.
Upon the ground, therefore, of the insufficiency of the affidavits, not regarding the uncertainty of knowledge about the illegality sworn to, I think this rule should be discharged.