of the city of their power to determine their own members, they were not the final judges of the election of the mayor.

4. Rev. Laws, c. 11, § 267, provides that, in case of dissatisfaction as to the count by the precinct officers of ballots for public officers, the city clerk shall send the ballots to the registrars of voters, and, on the return to him of the ballots and the result of their recount, amend the returns of the election in accordauce therewith, and that the records SO amended shall stand as the true records of the election. Held, that mandamus was a proper remedy to compel the registrars of voters not to count certain defective ballots, and to make a statement to the clerk of the result of their recount, as obtained by omitting such ballots.

5. Mandamus and certiorari could not both be maintained by the same petitioner in regard to such counting.

Cases reserved from supreme judicial court, Essex county; Wm. Caleb Young, Judge.

First case, certiorari by one Flanders and others against one Roberts and others; second and third cases, mandamus between the same parties; fourth case mandamus by Flanders against Runkins. Heard in supreme judicial court, and reserved for full court. Writs of mandamus granted.,

Geo. Fred Williams, for petitioners. Boyd B. Jones and Jos. H. Pearl, for respondents.

LORING, J. The main question here is whether the registrars of voters were wrong in counting 18 ballots for the Republican candidate for mayor. On these 18 ballots there was a cross on the square opposite the blank space left for the insertion of a name of a candidate whose name is not printed on the ballot, and the name of the Republican candidate was just above this blank. We are of opinion that the registrars of voters were wrong in counting those ballots as they did. The question whether these ballots were to be counted by the registrars of voters as votes for the Republican candidate, or not, was a question to be determined from what appears on the face of the ballot, and not on evidence aliunde. The rule to be applied is this: If the intent of the voter can be fairly determined, effect shall be given to that intent, and the vote counted in accordance therewith. This is the rule originally laid down in Re Strong, 20 Pick. 484, and continued, under the Australian ballot system, in acts which are now Rev. Laws, c. 11, § 238, providing that, if the voter's "choice cannot be determined, his ballot shall not be counted"; and this has been recognized in this commonwealth in all the reports of cominittees of the legislature on which it has acted in deciding questions of this kind involved in the election of its members. See, also, Woodward v. Sarsons, L. R. 10 C. P. 733.

It must be taken to be established that where a cross is put in the square opposite the blank space left for the insertion of a name of a candidate by the voter, and nothing more appears, the ballot is not to be counted as a ballot for the candidate whose

This

name is printed next above that space. was so decided by this court in 1901. O'Connell v. Mathews, 177 Mass. 518, 59 N. E. 195. It had been adopted previously, in 1897, by both branches of the general court of the commonwealth, following the action of the governor's council and of the election commissioners of the city of Boston in Sullivan v. Allen, Russ. Mass. Elec. Cas. 99. In 1896 a similar decision had been made by the Massachusetts house of representatives in Re Morgan, Russ. Mass. Elec. Cas. 85. In that case the mark was opposite the space above the printed name of the first candidate, outside of the space for those candidates, and immediately over the column of the squares for the crosses. The same conclusion has been reached in Pennsylvania. In re Flynn's Contested Election, 181 Pa. 457, 37 Atl. 523.

It is sought to take this case out of the rule which has now become established, because in the case at bar the voter, in case of each of the ballots in question, voted by a cross in the proper square for the Republican nominee for each one of all the other offices (11 in number) on the ballot. But the rest of each of the ballots in question shows, if it shows anything, that the voter knew exactly what he had to do if he wanted to vote for. a candidate. What he has done is to throw a ballot for a blank. We may conjecture that this was a mistake, and that it is not what he intended to do. But the question is not one of conjecture, but of what the ballot shows that he intended to do. The ballot shows that he cast a blank vote for mayor, and we must hold that to have been his intention. The same conclusion was reached under similar circumstances by the house of representatives of the commonwealth in Re Morgan, Russ. Mass. Elec. Cas. 85. It is to be remarked that the earlier acts in Massachusetts did not require the cross to be put in the square (St. 1888, c. 436, § 23; St. 1889, c. 413, § 23), as the present act does (Rev. Laws, c. 11, § 227, re-enacting St. 1893, c. 417, § 162; St. 1898, c. 548, § 224).

The second question raised by the respondents is the right of this court to correct this error, and they have argued that the court is neither a canvassing board nor a returning board. That certainly is true, but still we are of opinion that we can correct this error. We have jurisdiction to correct errors of law appearing on the face of the papers made by a returning board in counting a ballot as a vote for a candidate for office which is not a vote for that candidate. The jurisdiction was established by In re Strong, 20 Pick. 484, and it still exists, unless it has been taken away by statute. The respondents contend that it has been taken away by Rev. Laws, c. 11, § 267. Their contention is that the words "and the records so amended shall stand as the true records of the election" prevent this court from interfering to correct an error of law, if one was made, in the recount of the votes. The phrase relied on is

found for the first time in St. 1863, c. 144, § 3. After that it is found in St. 1874, c. 376, § 42; St. 1876, c. 188, § 4; Pub. St. c. 7, § 36; St. 1884, c. 299, § 31; St. 1886, c. 262, § 1; St. 1890, c. 423, § 104; St. 1893, c. 417, § 207; St. 1898, c. 548, § 264. The original act (St. 1863, c. 144, § 3), and each one of the subsequent acts, apply to elections to the house of representatives of the United States, to elections to both branches of the general court of the commonwealth, and to many city councils which by their charters are final judges of their own elections. The legislature could not constitutionally have provided that the statutory recount provided for in these acts should preclude the national house of representatives or either branch of the general court of the commonwealth from dealing with any questions passed on by the board whose duty it was to make the recount, and it cannot be held that the legislature intended by one and the same clause to preclude this court from reviewing the action of the board for errors in law in case of officers whose election is not covered by the constitution, when it is admitted that, as matter of construction, in view of the provisions of the constitution, it has not made the action of that board final in case of the members of the national house of representatives and the members of the general court. The reason for the clause is plain: The original return is made by one person or board of persons, the precinct officer; the recount by another, the registrars of voters; and the amendment by a third person, the city or town clerk. All that the clause means is that the amendment of the return, although not made by the original maker of the return nor by the recounting board, shall stand as amended under the section when made by the third person. Moreover, the statutes which provide for the preservation of ballots contemplate their being kept until the contest is ended, and not merely until a recount has been had. St. 1863, c. 144, § 3. See Opinion of Justices, 117 Mass. 599, 601. This, again, negatives the idea that the recount is final, and, without tracing this statute through all its re-enactments, it is the law to-day. Rev. Laws, c. 11, § 266. Apart from the fact that the clause here in question is in contrast with that under consideration in Attorney General v. Drohan, 169 Mass. 534, 48 N. E. 279, 61 Am. St. Rep. 301, as was pointed out in that opinion at page 538, 169 Mass., page 282, 48 N. E., 61 Am. St. Rep. 301, the matter sought to be submitted to the court there was a question of an entirely different kind from that in question in the case at bar. In that case the Democratic city committee undertook to pass upon the question of fact that the plaintiffs were elected by votes of Republicans at the Democratic caucus in question, and the sole question was whether the Democratic city committee, not whether this court, was ousted of jurisdiction. The only question submit

ted to the court was whether the action of the board to recount, or that of the committee, was final. It was not a case where this court was asked to correct an error of law made by the recounting board. The contention that the legislature was ousted of power to reverse the determination of the recounting board was made and overruled in Shepard v. Sears, Russ. Mass. Elec. Cas. 30.

The respondents' next contention is that the mayor, as the presiding officer of the board of aldermen, is a member of the board, within the provision of its charter (St. 1867, c. 251, § 9) which makes the aldermen "judge of the election of its own members," and that the action of that board declaring the Republican candidate to be elected mayor, under Rev. Laws, c. 11, § 269, is final, within Peabody v. School Committee, 115 Mass. 383. They contend that this power of the aldermen is not only not revoked, but is continued, by Rev. Laws, c. 11. §§ 266, 269. They also contend that since, by Rev. Laws, c. 8, § 5, ""the words "mayor and aldermen" mean board of aldermen except as applied to appointments,' it follows that the board of aldermen were the judges of the election of the mayor and aldermen, and, as above stated, the Revised Laws do not modify their powers in that respect." We are of opinion that the aldermen of Haverhill are the final judges of the election of aldermen, but not of the election of the mayor. Fritz v. Crean (Jan., 1903) 65 N. E. 832, relied on by the respondents, was not a case where there was an error of law apparent on the face of the papers, but a case where it was contended that there had been an error of computation in the counting of the ballots in the election of an officer, where the result of the election had been announced to the meeting by whom the election was made, and accepted by it, and where there was no provision of law for the preservation of the ballots or for a recount.

We are of opinion that the petitioner is entitled to a remedy by mandamus. He cannot maintain both mandamus and certiorari. For that reason, it is not necessary to consider whether the action of the board of registrars in recounting votes under Rev. Laws, c. 11, § 267, is not purely ministerial. See, in that connection, Clark v. Board, 126 Mass. 282; Luce v. Board, 153 Mass. 108, 26 N. E. 419. If the action of the board under Rev. Laws, c. 11, § 267, is ministerial, certiorari does not lie to correct errors made by them when acting under that section. Locke v. Selectmen of Lexington, 122 Mass. 290; Old Colony R. Co. v. Fall River, 147 Mass. 455, 462, 18 N. E. 425.

In the petition for a mandamus against the registrars of voters an order may issue commanding them not to count said 18 ballots as votes for the Republican candidate for mayor, and to make and sign a statement of the questions raised by the applications for a recount of the votes cast for

which is as favorable to the county as any that has been brought to our attention,-recognizes this distinction. There the mayor and aldermen laid out a street 40 feet wide across a railroad, when the order of the county commissioners, without which they could not lawfully lay out a street over a railroad, prescribed a street 50 feet wide. Mr. Justice Devens, in the opinion, says: "The question of laying out a street at grade over a railroad location was a matter placed within the jurisdiction of the city authorities by the action of the county commissioners. They had received full power to locate such a street, if they determined that public convenience required it. If it was an error on their part in locating the way only 40 feet in width, it was an error of detail in dealing with a subject legally confided to them. This error could have been corrected in some one of the modes adverted to. It did not require that their proceedings should be wholly set aside." The error in the present case is of a different sort. It consists in a departure from the business which was within their jurisdiction, and an attempt to deal with a subject entirely outside of their province. They had no right to make any order in regard to the party that should pay the land damages. There is no statute which confides that business, or anything relating to it, to their jurisdiction. On the contrary, the statute which we have quoted covers the whole subject with a provision entirely different from that which they attempted to make. It is difficult to see on what principle, without legal authority, in a matter outside of their jurisdiction, they could impose a liability upon these towns by an order in direct contradiction of the provision of the statute. We must hold that this part of their order was wholly void, and it is therefore of no effect upon the rights of the petitioners or the towns in this proceeding. It does not affect the validity of the proceedings in other parts. I leaves the cases as if they had made no order in regard to damages. The statute protects the rights of the parties by its requirement that these damages shall be paid by the county. Pub. St. c. 49, § 58. The fact that no order was made for their payment by the county is like the common case where no damages are awarded. Under St. 1900, c. 299, the petitioners could bring their petition in the superior court without an application to the county commissioners.

Judgments on the verdicts.

(159 Ind. 593)

COLLINS v. AMISS. (Supreme Court of Indiana. Jan. 7, 1903.) ACTION ON CONTRACT-CONDITIONS PRECEDENT-PLEADING-SUFFICIENCY.

1. Defendant agreed to purchase a lot on condition that plaintiff erect a certain factory building, and to pay one-sixth of the purchase price when certain other lots were subscribed for and the foundation completed. When the

roof was up, he was to pay an additional onesixth of the purchase price, and execute notes and a mortgage for the balance, and receive a warranty deed. The agreement was to be void if the building was not begun within 60 days from the date of his subscription. In an action for the first installment of the price plaintiff alleged that a sufficient warranty deed had been tendered, but did not allege that the other conditions had been performed. Held, that the complaint was insufficient, under Burus' Rev. St. 1901, § 373 (Rev. St. 1881, § 370; Horner's Rev. St. 1901, § 370), which provides that "in pleading the performance of a condition precedent in a contract it shall be sutticient to allege generally that the party performed all the conditions on his part."

Appeal from circuit court, Huntington county; J. C. Branyan, Judge.

Action by Joseph G. Amiss, trustee, against William H. Collins. Judgment for plaintiff, and defendant appeals. Transferred from the appellate court under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590). Reversed.

Kenner & Lesh, for appellant. S. M. Sayler and Spencer, Branyan & Spencer, for appellee.

MONKS, J. Appellee brought this action against appellant to recover upon a written contract. A trial of said cause resulted in a judgment in favor of appellee. It is insisted that the court erred in overruling appellant's demurrer for want of facts to the amended complaint. Appellant was to purchase one of the lots upon the terms mentioned in said written contract, which reads as follows:

"We, the undersigned, hereby agree with Joseph G. Amiss, trustee, that we will purchase at and for the price of $200 per lot (lots to be 50 feet by 120 feet deep) the number of lots set opposite our names, and pay therefor upon the terms hereinafter named. Said lots to be in a tract of land in Huntington county, Indiana, known as the "Taylor Farm,' being a part of the east half of the northeast quarter of section 22, township 28 north, range 9 east, being the land immediately south of Rabbit Run creek,-upon the following conditions: That the said Amiss. trustee, shall cause to be located and erected a 50 by 140 ft. two-story and basement brick and stone building and engine room attached upon said tract herein named for the purpose of operating a factory in the manufacture of boots and shoes, agreeing to employ 75 to 200 hands, and continue the same for a period of not less than five years; all of which is guarantied to said Amiss by contract with the Footeral, Barker & Brown & Co., now of Lafayette, Indiana. We further agree that when 140 lots are subscribed for, and the foundation of said building is completed, we each agree to pay to said Amiss % of the purchase price of the lots so purchased severally, and when the roof is on said building we agree to pay an additional % each of the purchase price of the lots so purchased severally, and at the same time execute notes and mortgage, one due in one year and one

due in two years from date, each note for the one-third of the purchase price, bearing six per cent. interest from date per annum, payable annually, and receive a warranty deed and abstract for said lot. The location of said lots to be determined at a meeting of lot purchasers by some plan determined by them in such meeting, and this subscription to be void and inoperative if the construction of said building is not commenced within 60 days from the date of our subscription. All moneys to be paid to Citizens' Bank, Huntington, Indiana.

The contract does not show when it was executed. The objection urged against the complaint is that it does not show by specific and particular averments or otherwise that all the conditions precedent in said contract had been complied with before the commencement of the action, nor give any excuse for failing to do so. Section 373, Burns' Rev. St. 1901 (section 370, Rev. St. 1881; section 370, Horner's Rev. St. 1901), provides that "in pleading the performance of a condition precedent in a contract, it shall be sufficient to allege generally that the party performed all the conditions on his part." The amended complaint contains the allegation that "the plaintiff, in accordance with the contract with the defendant, tendered to the defendant a good and sufficient warranty deed," which, the appellee insists, is a compliance with section 373 (section 370), supra. This allegation, however, only shows a compliance with the provision of the contract which requires appellee to execute to appellant a deed for said lot. If a party does not avail himself of the provisions of said section 373 (section 370), supra, by making the general allegation thereby authorized, he must allege the performance of all conditions precedent with the particularity required by the rules of the common law. Board v. Hill, 115 Ind. 316, 322, 16 N. E. 156; Commercial Union Assur. Co. v. State, 113 Ind. 331, 332, 15 N. E. 518; Insurance Co. v. Capehart, 108 Ind. 270, 273, 8 N. E. 285; Insurance Co. v. Duke, 43 Ind. 418, 421; 4 Enc. Pl. & Prac. 632-635.

The facts alleged in the amended complaint do not show that 140 lots had been subscribed for, and that the foundation of the building of the kind and dimensions specified in the contract had been completed on the real estate mentioned in said contract, and that the construction thereof had been commenced within 60 days from the date of the subscription. To enable appellee to recover the first installment of one-sixth of the purchase money under said contract, a compliance with such conditions should have been alleged, as authorized by section 373 (370),

supra, or by specific and particular averments, as required by the rules of the common law. Magic Packing Co. v. Stone-Ordean-Wells Co. (Ind. Sup.) 64 N. E. 11, 12, and cases cited; Dalrymple v. Lauman, 23 Md. 376, 398; Turner v. Baker, 30 Ark. 186; Bucksport & B. R. Co. v. Inhabitants of Brewer, 67 Me. 295, 297; Persinger v. Bevill, 31 Fla. 364, 368, 369, 12 South. 366; Caldwell v. Harrison, 11 Ala. 755; Frisbie v. Moore, 51 Cal. 516, 518; Levy v. Burgess, 64 N. Y. 390, 394; Slater v. Emerson, 19 How. 224, 15 L. Ed. 626; Id., 22 How. 28, 16 L. Ed. 360. The conditions upon which each installment was to become due and payable, and when appellant was to execute his notes and mortgage, are stated in the contract, and the same can only be required of appellant when the said conditions are complied with, or a sufficient excuse for not doing so alleged.

As the other questions argued may not arise again, they are not considered.

Judgment reversed, with instructions to sustain appellant's demurrer to the complaint, and for further proceedings not inconsistent with this opinion.

(159 Ind. 636)

HAGUE et al. v. FIRST NAT. BANK OF HUNTINGTON.

(Supreme Court of Indiana. Jan. 8, 1903.) BILL OF REVIEW-COMPLAINT-FAILURE TO STATE CAUSE OF ACTION-APPEAL-JOINT ASSIGNMENTS OF ERROR-STATEMENT.

1. Where a complaint was in two paragraphs, and defendant demurred to each separately and severally, both demurrers being sustained, and on appeal the only assignment of error was that "the court erred in sustaining the demurrer," there must be an affirmance, unless both demurrers were improperly sustained.

2. In an action to review a judgment against plaintiffs in a previous injunction suit, a complaint stating none of the facts upon which the complaint for injunction rested, or any facts from which the court deduced its conclusions of law in that suit and refused to grant plaintiffs a new trial, was demurrable.

Appeal from circuit court, Huntington county; Joseph W. Adair, Judge,

Bill by Thomas H. Hague and others against the First National Bank of Huntington. Judgment for defendant, and plaintiffs appealed to the appellate court, whence the case was transferred to this court under Burns' Rev. St. 1901, § 1337u. Affirmed.

Spencer, Branyan & Spencer, for appellants. Roscoe A. Kaufman, O. W. Whitelock, and Samuel E. Cook, for appellee.

HADLEY, C. J. Appellants brought this action to review a judgment obtained against them by the appellee. The amended complaint is in two paragraphs, to each of which the appellee demurred separately and severally. The demurrer was sustained to each paragraph of the amended complaint and appellants excepted. The only assignment of

1. See Appeal and Error, vol. 3, Cent. Dig. § 3032.