¶1The motion must be denied, For aught that appears, the spurious ballots were for the ticket which, was in the minority. To warrant setting aside the election, it must appear affirmatively, that the successful ticket received a number of improper votes, which, if rejected, would have brought it down to a minority. The mere circumstance that improper votes are received will not vitiate an election. If this were otherwise; hardly an election in the state could be sustained.
¶2Motion denied.
¶3(1) If a presiding officer or judge of an election, acting honestly, from the best judgment he can form on the evidence before him, takes a vote which turns out to be an illegal vote, of refuses a vote which turns out to be a legal one, he is not liable therefor. The State v. M'Donald, 4 Harring. 555; The State v. Porter, 4 Harring. 556. If a vote is challenged, and two of the judges concur in rejecting it as an illegal vote, the presiding officer has no right to receive it; and if he does receive it, and it turns out to be an illegal vote, it would be evidence of corruption. The State v. M'Donald, 4 Harring 555. See Waterman’s Archbold’s Cr. Law. Vol. III. p. 623, et seq.