scratched or not. Did not look it through. Mr. Wright saw a Democratic ticket that was thrown out. It was not scratched, to his knowledge. Mr. Salmon saw Mr. Callas pick out a ticket, but did not hear him say it was a straight Democratic ticket. Had no opportunity to see the tickets, or read them, although close by. Mr. Callas would pick them out, crumple them up, and say, "Here is another ticket in the wrong box." They were destroyed without reading. No recollection of hearing any judge say they were straight Democratic tickets. Mr. Callas would open them just far enough to see the heading, and some he did not open at all. He could not read the tickets, not time to read them. The tickets were counted by

candle light.

Mr. Smith was present when Mr. Callas picked the county tickets out of the city box, and saw what was done with them. He could not say whether they were Democratic or Republican or Liberal tickets, although he says he had a better chance to know than any one else. That Mr. Callas took no time to read the tickets, or see anything more than the heading. That Callas doubled up the tickets, and laid them on the table, with no opportunity to read them. The other judges did not handle these county tickets. Frequently heard some one say one was a Republican ticket. Callas did not hold the tickets long enough to read the names on them. Does not think he took the pains to tell whether the names were scratched out or not. Mr. Fisher saw Callas take a county ticket from the city box, and said, "Here is one of them," and ground it up in his hand, and threw it on the floor. Callas did not take time to read the ticket. Witness thinks there were

only two county tickets in the city box. There was no time to read the ticket. Callas only had time to look at heading. Mr. Hopkins saw Callas pick out the first county ticket, look at the heading, crumple it up, and throw it

away. Could not have read the ticket through. None of these county tickets were passed to the other judges. They had no opportunity to handle or inspect these tickets to see what names were on them. Some tickets were not opened at all.

It will be seen from this synopsis of the testimony that there is very much uncertainty thrown around the character of these tickets. If it be conceded that they were all Democratic tickets, still it is a mere matter of conjecture as to whether Mr. Young's name was printed thereon, or whether his name was scratched or not. No witness has testified that Mr. Young's name was on these tickets, nor does it sufficiently appear that if his name was on these tickets that one or more of them may not have been scratched off. Many scratched tickets were found in the box, although the particular character of the tickets does not appear. We know from common experience that those who do vote are usually unwilling that the character of their votes be made public, and that whenever there is an investigation as to the actual vote cast it is almost certain to bring about prevarication and uncertainty as to what the truth is; and while in this case before us no special reasons exist for casting reflctions upon the truth of those who participated in the election, yet it is deemed unwise to lay down any rule by which the certainty and accuracy of an election may be jeopardized by the reliance upon any proof affecting such results that is not of the most clear and conclusive character.

The temptation to actual fraud and corruption on the part of the candidates and their political supporters is never so great as when it is known precisely how many votes it will take to change the result, and men who are willing to sell their votes before election will quite as readily sell their testimony afterwards, especially as the means of detecting perjury and falsehood is not always at

hand until after the wrong sought to be accomplished by it has become successful, and the honest will of the people has been thwarted. In People v. Sackett, 14 Mich. 320, the court holds that the returns of the inspectors is prima facie evidence of the result of an election, and that, where the ballots have not been preserved in the manner required by law, but have been left in an exposed condition, or destroyed, the presumption that would otherwise exist of their correctness is not raised, and the court may properly be governed by the returns, unless fully convinced by proof of the integrity of the ballot. These ballots having been improperly destroyed, and the judges not having certified that they were cast for Mr. Young, we think the evidence that these six ballots were cast for Mr. Young is insufficient to justify that finding, and that the judgment entered in favor of the plaintiff and contestant should be reversed, with costs, and the case remanded for further proceedings.

SMITH, J., concurred in the judgment of reversal.
BARTCH, J., dissented.

ROSE DURFEE AND ANOTHER, RESPONDENTS, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT.

RAILROADS.-EJECTION OF PASSENGER.-STOPPING PLACE.-Under the laws of Utah Territory, a railroad company can put off a passenger, who refuses to pay double fare as required by the rules of the company, because such passenger has purchased no ticket, only at a passenger station, affirming Nichols v. Railway Co., 7 Utah, 510.

DAMAGES.-EJECTION OF PASSENGER.-AMOUNT.-A verdict of $50 damages in favor of a passenger, who has been ejected from a train for refusal to pay fare, at a place where there was no station, and had been in consequence compelled to walk three and a half miles to her home, is not excessive.

APPEAL from a judgment of the district court of the fourth district and from an order refusing a new trial, Hon. James A. Miner, judge. The opinion states the facts.

Messrs. Williams and Van Cott, for the appellant.

Messrs. Maloney and Perkins, for the respondent.

ZANE, C. J.:

This is an appeal by defendant from a judgment for the plaintiff for $50 damages, and for costs. It appears from the evidence in the record that the plaintiff resided in the town of Willard, on defendant's road; that she purchased a ticket from Hot Springs, Weber county, to Salt Lake City, and return; that, when her train reached the Hot Springs on her return, she did not get off and purchase a ticket to Willard, the cost of which would have been 25 cents; that, after the train had passed the Springs, the conductor demanded her fare, which was 50 cents when paid on the train; that, for this extra quarter, the rule of the company was to give a rebate ticket, which, upon presentation to any ticket agent, entitled the holder to that amount; that the plaintiff was willing to pay the 25 cents, but not 50; that the conductor stopped the train, and told her to get off, which she did; that there was no station where she got off; and that she walked 3 miles to her home. There is some evidence tending to prove the plaintiff got off because another lady did so. We think, however, that the jury were authorized to find she got off because the conductor ordered her to. We think $50 damages not excessive, under the circumstances. The

employés of the defendant had no right to put the plaintiff off its train, for not paying fare, at a place other than a passenger station. Nichols v. Railway Co., 7 Utah, 510, 27 Pac. Rep. 693. The judgment of the court below is. affirmed.

BARTCH, J., and SMITH, J., concurred.

DANIEL HAMER, APPELLANT, v. FIRST NATIONAL
BANK OF OGDEN, RESPONDENT.

EVIDENCE.-OPINION.-IMMATERIALITY.-When, in a suit brought for malicious suing out of an attachment, plaintiff is asked whether defendant had any motive in issuing the attachment other than an honest desire to collect the debt, such question asks for the conclusion of the witness and should be excluded, and the witness should be confined to a statement of the facts. ID.-ID. INCOMPETENCY.-It was proper to exclude the testimony

of a witness as to the purpose of plaintiff in doing certain acts. The witness should state the facts and circumstances within his own knowledge that influenced the plaintiff. The purpose of plaintiff was a conclusion to be drawn by the jury. ID.-ID.-IMMATERIALITY.-A question was asked a witness on cross-examination whether a feeling existed on the part of the witness and an institution in which the witness was interested against the defendant bank, was wholly immaterial, because having no connection with the appellant, even though it was shown that the appellant had transferred his business from the defendant bank to the rival institution, and was one of the organizers thereof.

TRIAL.-CONSTRUCTION OF INSTRUCTIONS.-APPEAL.-The instructions given to the jury in the trial court should be considered