Tbe contention of tbe plaintiff is tbat tbe election could not be held under tbe new registration because of tbe failure to give legal notice of tbe registration, and tbat tbe right of tbe voters to vote must be determined by tbe old registration books, while tbe contention of tbe defendant is tbat no legal election was held, and tbat if this position cannot be maintained, tbat tbe election was held upon tbe new registration.

It would seem to be clear from tbe record tbat if tbe right of tbe plaintiff to recover is tested by either tbe old or tbe new registration, be cannot recover.

Tbe burden is on tbe plaintiff to prove tbat be was duly elected, as this is alleged in tbe complaint and is denied in tbe answer.

Tbe answer does not admit tbat 45 legal votes were cast for tbe relator, thereby leaving open only tbe question .of tbe right of A. J. Powell to vote.

On the contrary, there is not only a denial tbat tbe plaintiff was elected, but also an allegation tbat tbe whole election was void, and tbe admission of tbe defendant is only tbat tbe judges of election counted 45 ballots for the relator and 45 ballots for bis opponent.

It was therefore competent for tbe parties to offer evidence as to tbe legality of tbe votes counted, and if this is considered, tbe plaintiff *262 has failed to prove Ms title to tbe office by the old or the iiew registration.

If the old registration alone is considered, there must be deducted from the 45 votes counted for the relator the votes of Kurfees and Fletcher, who were not registered on the old registration books, which would leave his vote 43, and if the vote of Powell is added, he would have only 44 votes and his opponent 45.

If his title is tried by the new registration he is not entitled to recover unless the vote of Powell can be added to the votes counted for him, and Powell was not registered on the new registration book.

We are therefore of opinion that in any view of the evidence the' plaintiff has failed to make out his title to the office, and that the judgment of nonsuit ought to have been allowed.

This renders it unnecessary to consider the other questions presented by the .appeal.

Reversed.