
    Allen v. Crow.
    ^Election.—Contest.—The statute, 1G-. & H. 318, requires the contestar of an election to make affidavit to his ground of contest, hut it does not require the contestee to swear to the grounds on which he resists the contest.
    
      •Same.—Where an election is contested on the ground that illegal votes were cast for the contestee equal to his declared majority, it is a sufficient answer that illegal votes were given and counted for the contestor, and that the contestee received a majority of the legal votes cast.
    From the Putnam Circuit Court.
    
      J. J. Smiley, W. G. Neff, and T. O. Grooms, for appellant.
    
      E. E. Williamson and A. Eaggy, for appellee.
   Worden, J.

The appellant and the appellee were, respectively, candidates for the office of township trustee for the township of Greencastle, in Putnam county, Indiana, at the general election for the year 1872. Crow was declared duly elected, and Allen contested his election before the board of commissioners of that county, on the ground that illegal votes had been cast for and counted to Crow, which, if deducted from his legal votes, would leave a majority in favor of Allen; the contestor. Crow filed an answer of general denial and a second paragraph, alleging, in' substance, that illegal votes had been cast for and counted to Allen, and that he, Crow, had a majority of the legal votes cast. The second paragraph was not sworn to.

The board of commissioners, upon the trial of the cause, found for the contestee, and adjudged accordingly. Allen, the contestor, appealed to the circuit court, where the cause was tried with the same result as before the board of commissioners. Allen appeals to this court.

A motion was made in the court below to strike out the second paragraph of the answer, but it was overruled, and exception taken. A demurrer was then filed to it for want of sufficient facts, but was overruled, and exception taken. No objection is made to the paragraph of answer, except that it was not sworn to. We are of opinion that the answer need not have been sworn to. The statute requires the contestor to swear to his grounds of contest. 1 G. •& PI. 318, sec. 16. But it does not require the contestee to swear to the grounds on which he resists the contest. The matter set up in the answer was good ground on which to resist the contest, as is shown by the statute, which provides as follows:

Nor shall any election be set aside for illegal votes, unless the number thereof given to the contestee, if taken from him, would reduce the number of his legal votes below the number of legal votes given to some other person for the same office.*' 1G.&H. 318, sec. 15.

There is no other question involved in the record.

The judgment below is affirmed, with costs.  