1867.] OF THE SENATE. 71

gun to the polls; shooting at a mark or target being a favor-
ite pastime on election day.. It is shown that these armed
men belonged to both parties; the contestants' witnesses,
with one or two exceptions, deny emphatically that they were
in any manner or degree intimidated, establish the fact that
there was no rioting, quarreling or interference with voters ,
and that the election was unusually quiet, peaceable and or-
derly. It is true, that on this occasion, many came armed,
having reason to apprehend an assault upon them by citizens
from West Virginia and others; but their apprehension proved
groundless, and not a gun was fired or employed menacingly
during the whole day. It is charged also that the judges of
election, through inadvertance or otherwise, miscounted the
ballots and made erroneous returns both for the sitting mem-
ber and for the contestant. That there were numerous irre-
gularities and informalities in the conduct of this election on
the part of several judges, as well as their clerks, does not ad-
mit of a doubt. Thus in District No. 5, no return at all was
made for Senator. This palpable clerical error is sought to be
availed of to the advantage of the contestant, his opponent
having here received a majority of ninety-nine votes, but the
injustice of excluding this poll is so glaring that the under-
signed cannot believe it will be seriously contemplated by
your Honorable Body. Were it so, it would be impossible to
imagine what wrongs and frauds might not be perpetrated
by dishonest clerks. Such an omission as this, which has.
however, been fully and satisfactorily supplied by the poll
books, it is the duty of your Honorable Body to remedy, and
the undersigned have in a spirit of equity and justice accord-
ed the said majority of ninety-nine to to the sitting member.

Great weight is sought to be given to a re-count of the bal-
lots in the Clerk's office, which took place more than a week
after the election, and was conducted by a committee of six
citizens, not acting under oath, on which occasion the contest-
ant was present, but the sitting member had no notice there-
of, and was not. It is submitted, that this re-count is un-
trustworthy and not to be relied on for the reason that the
ballots were not for several days in the custody of any officer
known to the law, and that frequent opportunities might
have been had for tampering with them.

The Clerk of the county, who, in contemplation of law, had
the custody of the poll books and ballots, is shown to have
been absent from his office for nearly a week, between the
10th and 17th days of November, and the deputy clerks were
in exercise of their duties, without having taken the oath of
office prescribed by law, and did not take it until the 10th
day of December following. The evidence in the case shows,
that many ballots were lying loose and scattered upon the ta-
ble in the vault belonging to the Clerk's office; that various