
    Olive against O'Riley.
    
      July, 1826.
    In action for penalty for voting without legal qualification, the list of votes taken as required by Statute is the best evidence to shew who voted.
   JUDGE White

delivered the opinion of the Court.

This was an action by Olive against O‘Riley, to recover the penalty for voting at a general election without legal qualification.

On the trial the plaintiff offered to prove, by a person said to have been presént at the election, that the defendant voted. He then offered to prove the same fact by one of the inspectors or Judges of the election. He then offered to prove by the said Judge of the election, that a certain list of names and numbers, to the amount of several hundred, was in the hand-writing of one of the Clerks of the election. All which evidence the Court rejected,

The question presented by the bill of Exceptions and assignment is, Was the Court right in excluding all this testimony from the Jury, or should any part of it have been admitted ?

The list of the names and numbers of the voters at elections as required by the Statute to be kept by the Clerks, are written evidence; and unless their loss be first proved, or their non-production be accounted for, parol evidence of their contents cannot be given. .

Wm. B. Martin, for plaintiff.

McKinley an.d Hopkins, for defendant in Error.

The list spoken of does not appear to have been produced, nor does it appear to have been one of the original lists, although it is said to be in the hand-writing of one of the Clerks; and as all reasonable inferences are to be drawn in support of a judgment, the judgment must be affirmed.

Judge Gayle not sitting.

See Laws. Ala. 274, 267, 270.  