In 1861 there was a by-election in Victoria for two vacant seats in the Legislative Assembly.
On November 15, 1861 Jacob Francis was nominated by James Thorne and J.D. Carroll as a candidate.
One other nominee, Joseph Trutch who was not in the colony at the time; and an objection to his nomination was raised on the grounds that he was not present to swear the oath of allegiance required of all candidates. Nevertheless, his nomination was accepted.
There were four candidates for the two vacant seats and the results of the voting were: Trimble – 38, Trutch – 36, Francis – 11, and Young – 4. Trimble and Trutch were sworn into office.
Despite Francis’ 3rd place, there was public debate and support for Francis’ claim to the seat because of Trutch’s earlier absence. Francis’s petition failed; Trutch’s election stood.