(Rehearing.)

court itself is chained to its error, and cannot right itself, even when the mistake is beyond question. From such a conclusion of law, founded upon a state of facts entirely dissimilar to any which can arise in an election contest, we dissent and if it has heretofore been thought by the court, that such fetters bound them, when an appeal was made for relief against error in fact committed by the court, it is time that such fetters were rent asunder, and the necessary freedom to correct such mistakes proclaimed. This liberty must, however, have its limits; the application, on its face, must show that it is well founded; it is strictly an appeal to the discretion of the court, and may be allowed or refused in the exercise of a sound discretion; it is a proceeding which is not to be favored, except upon the plainest exhibition of a primâ facie case, requiring the interposition of the court to correct an error. A contrary course tends to prolong controversy in regard to the title to office, by which the interests of the public are placed in peril; a strict adherence to rule should be required in every such application.*

But the conclusion at which we have arrived, as to our power to reconsider and reform our decree, is not without authority to support it. In Cannan v. Reynolds, 5 Ellis & Bl. 301, Lord Campbell asserts a general equity jurisdiction of the court over their judgments; Coleridge, J., concurred and added, that the practice was now inveterate and of every-day occurrence, to set aside judgments, whether regular or irregular, whether after execution or before, which, he remarked, showed their jurisdiction to do this; Crompton, J., agreed that the power could be exercised, but the application must be made within a reasonable time after judgment is entered. In Usher v. Dansey, 4 M. & S. 94, an amendment was allowed, after judgment

*It is difficult to understand what is meant by a strict adherence to rule, in what is just said to rest in judicial discretion; it is only another proof of the impropriety of vesting such discretionary powers in the courts, in political cases.

(Rehearing.)

given in a former term and error brought thereon, and pending error; the amendment was to correct a misprision of the clerk. The court, in the case of Galway v. Banon, Longf. & Towns. (Ir. Exch.) 70, allowed a petition to amend notes of decree, without withdrawing appeal. In this state, it has been held that, after error brought on a judgment of the district court or common pleas, the application for leave to amend, may be made to either of those courts, while the record remains in it, though the writ of error has been shown to the court; Fury v. Stone, 2 Dall. 184; s. c. Add. 114; 1 Yeates 186; the amendment was allowed on the authority of Pickwood v. Wright, 1 H. Bl. 643. In Spackman v. Byers, 6 S. & R. 385, the record was sent back for amendment; Rhodes v. Commonwealth, 15 Penn. St. R. 276, decides that amendments can be allowed after the term at which judgment is signed; Gibson, C. J., says, the notion to the contrary is exploded, and has yielded to necessity, reason and common sense. The court in which judgment is entered may allow amendments of the record, even after error, as between the parties. Crutchen v. Commonwealth, 6 Whart. 340; Chew's Appeal, 9 W. & S. 152. See also 1 Dall. 133-5; 5 Binn. 60; 5 Penn. St. R. 273.

These authorities make it abundantly clear, that the court possessed the most ample power to allow the petition of Mr. Sheppard to be filed; and some of them would seem to indicate, that the correction of errors and mistakes, if not a correction of the judgment, might have been made, after certiorari, and before the record of the cause was sent up. But the latest case, and the one strictly analogous to that which we are now considering, Ewing v. Thompson, holds the contrary doctrine, asserting that our proceeding would have been void, if indeed, such action would not have placed us in contempt. We were, therefore, required to rest, until the decision of the supreme court upon the case, as it was heard on certiorari; and we thought it but respectful and proper, that we should pause,

(Rehearing.)

while it was before Judge Read, upon a motion for a special injunction, to restrain Mr. Sheppard from further proceeding to prosecute to hearing and decree the matters set up in his petition.

The way is now clear for such action as this court, after mature consideration, has decided ought to be taken, in order to ascertain the truth of the averments contained in the petition to reform our decree. Upon the pleadings, we have nothing before us, but the original and amended petitions of Mr. Sheppard, Mr. Gibbons disclaiming, upon the last argument, in open court, all responsibility for the papers entitled, "answers to Mr. Sheppard's petitions for a rehearing," which were before the court upon the former argument; following the disavowal of Mr. Gibbons, these answers were, with leave of the court, withdrawn by Mr. Mann, who was counsel for Mr. Gibbons.* We might, therefore, content ourselves with an examination of the matters contained in the first and second petitions of Mr. Sheppard, there being no reply or answer before the court, although the statements contained in the answers, which were considered at great length, upon the first argument, are in fact, if not in form, before us.

It was admitted by counsel, representing both of the parties to the proceeding, that the purging of the polls had heretofore proceeded upon an erroneous basis; that instead of deducting the illegal vote from majorities, it should, in each case, have been deducted from the whole vote in the division, and that the mode in which the results were obtained, on the former hearing, worked to the disadvantage of the petitioner. To this error, into which counsel on both sides fell, upon which their calculations were based, and upon which their arguments were constructed, is to be attributed, in part, the result declared in the

* Mr. Gibbons asserted in open court, that Mr. William B. Mann was not his counsel, and had no authority to file the answers, though it was notorious that Mr. Mann had acted as Mr. Gibbons's counsel throughout this protracted cause!

(Rehearing.)

former opinion of the court,* and it is by an abandonment of this conceded mistake, and the adoption of a rule, now admitted to be the correct mode of purging a poll of its illegal votes, that a more accurate conclusion of this protracted and vexatious litigation has been reached.

Out of nearly 2000 pages of testimony, assessment lists, tally-lists and lists of voters for each election division, the manifest ignorance, bias and evident falsehood of many of those who were required to testify before the examiners, it is often difficult in the extreme, and sometimes impossible, to get at the truth of the controversy. As an illustration of this remark, it may be stated, that every calculation or table of results which has been prepared by counsel, has differed the one from the other. Upon the rehearing, we have, in effect, four statements prepared by counsel for the petitioner, two answers, afterwards withdrawn, and two statements submitted by Mr. Gibbons, each one differing in statement and conclusion. We can claim to have given to this case a most careful examination, with all these lights to aid us; in this examination, we have adhered firmly to the principles contained in the opinion of the court, which was delivered by Judge Brewster; in nothing have they been varied or departed from. We have confined ourselves to the correction of the account, where figures have been required to be placed into it, in consequence of an accidental oversight; with an abandonment of an admitted error in the mode of stating the account in purging a poll; and with a revision of our judgment, upon the evidence, as to whether votes to be received or rejected are legal or illegal votes. The strictest line of proof has been applied to every voter; and the result of the investigation will be stated, in summing up the corrected tables of the divisions to which our attention has been directed.

*In point of fact, on the original hearing, Mr. Sheppard was counted out; but before this rehearing, different political ideas prevailed, and different political results were to be achieved.

(Rehearing.)

We have refused credits which have been claimed, in every instance, in which the testimony, as to voters who were prima facie illegal, did not show that, at the time at which they offered to deposit their ballots, the offer was supported by the proof which the law demands; the vouching by election officers, without making the requisite proof, in each case, we have rejected. We hold that to enter upon the list of voters, that a voter was vouched for by a person whose name is written upon the list, is not, in itself, a full compliance with the law. In no case has a vote been counted as legal, where the proof showed, that a person who was assessed as residing at a place designated upon the assessment list, had removed therefrom before the election, unless it was established by evidence, that he had not removed from the election division.

The learned judge then proceeded to re-state the computation of the votes for the respective parties, resulting in a majority of thirteen for Furman Sheppard; and a final decree was entered that he was duly elected to the office of district-attorney.