jurisdiction to grant the relief sought. This would unquestionably be so, if the bill further averred that application had been made to the chancery court to appoint a county administrator, which perhaps ought to be done. Neither the creditor nor anyone else is compelled to administer upon the estate. The county administrator is a public officer, and as such required to duty. This bill does not contain these necessary averments, as held by the supreme court of the state; consequently the demurrer must be sustained and the bill dismissed, with leave, however, to the complainant to amend bill, if he can, so as to avoid the ground of demurrer stated.
CARUTHERS and others.
(Jourt, N. D. Missis8ippi. December Term, 1882.)
When the act charged in an indictment is fraudulent, it is not necessary to use the word" fraudulent."
2. BAME-Al'POINTMEM'1' OF INCOMPETENT ABBISTA:NT INSPECTORB' 01' ELllicTIONS -HEV. ST. § u51li. All indictment charging inspectors of elections with the appointment of in-
competent and unsuitable persons as assistant insp,ectors, to be good under section 5515, Hev. St., must state that it was with the intent to affect the election or the result thereof, otherwise it would be insufficient and quashable. These allegations must on the trial. be proved to the satisfaction of the jury, beyond a reasonable dO'lbt; if Dot, no conviction can be .had.
Although a statute providing for the appointment of persons to fill vacancies assist as inspectors of elections does not use the words" competent and sUit· able person," these qualifications are necessarily implied, as the vacancy ",ould not be properly filled unless by one having the same qualification possessed . by the person for whom he is substituted.
G. Ohander, Dist. Atty., and J. R. Ohalmers, Asst. Dist. Atty., for plaintiff·. H. A. Bar',. and G. B. Hourey, for dafendants. The questions DOW presented for decision arise upon;'defendant's motion to quash the indictment against them." The grounds alleged in support of the motion are that the indictment does not allege any offense against the statutes of the Uriited States under the title of "Crimes." The indictment in substance alleges and charges that the defendants were appointed and acted as inspectors of the election at Taylor's election precinct in Lafayette county, at the election held'on the seventh day of November, 1882, for the election of a represeuta-
tive in congress for the second congressional district of Mississippi; tha.t as such inspectors it became their duty, under the statutes of the state of Mississippi, to appoint some suitable person to act with them as such inspectors; and that said defendants neglected and refused to a.ppoint a suitable person to act as such inspector, but that they did then and there appoint as such inspector one Richard Henderson, who was then and there totally illiterate and wholly incompetent to diilcharge the duties of said office, with intent to affect the eJection, or the result thereof. HILL, J. The question is, was the failure to appoint some person as such inspector who could read and write, and was suitable and competent to discharge all the duties of said office required of the defendants, acting as such inspectors, required by the laws of the state of Mississippi; and, if so, did they fail to do so, either by failing to make the appointment, or by appointing a person wholly illiterate or incompetent and unsuitable to discharge the duty imposed by law upon inspectors of election? The Code of IR80 of this state constitutes the governor, lieutenant governor, and secretary of state a state board of elections, and makes it their duty, as such board, to appoint three and suitable persons as county commissioners of elections fol' each county, and that these boards of county commissioners shall appoint for each election precinct in their respective counties three competent and suitable persons as inspectors of elections, whose duty it is to hold the elections; to receive all legal votes given in at such elections as may be directed by law to be held at their election precincts; to count the votes when the polls are closed, and to ascertain the number of votes cast for each candidate voted for at such election, and to make out a statement thereof to be signed by them; and by one of their number, or by some suitable person to be appointed by them, to cause the said returns, with the tally-sheets and votes, to be returned and delivered to the board of county commissioners within a prescribed time. The statute further provides that if, at such election, either of the inspectors so appointed shall, from any cause, fail to attend and act. as such inspector, those who do attend and act shall fill such vacancy by appointing some other person to fillthe vacancy. While the statute, in providing for the filling of such vacancy, does not use the words" competent and suitable person, " these qualifications are necessarily implied; the vacancy would not be properly filled unless. by one having the same qualifications possessed by the person for whom he is substituted. The statute provides that the boards of
county, commissioners, and also the inspectors, shall not all belong' to the same political party, provided competent and suitable per- , sons of different parties can be secured as such. ,The plain meaning of this provision of the statute is that if competent aDd suitable persons of different parties cannot be secured to serve as such commissioners or inspectors, then it shall be the duty of those mak. ing the appointment to appoint competent and suitable persons of the same partjr. The statute provides, and properly so, that, in any event, competent and suitable, persons shall geappointed to ,dis. charge these highly important trusts, if such persons can be procured, and the presumption is that every county and election distrIct does contain a sufficient number of such competent and suitable persons to perform these duties, and that, if appointed, they will serve. If any county"or district should be ao unfortunate as not to cont.ain such persons, they ought to be abolished and added to such as do contain them. It is an impossibility for a person who can neither read nor write to properly discharge the duties of an inspector of such elections; it is their quty to determine what votes are proper to be received and counted, and those properly to be rejected; to ascertain whole number cast for each candidate, and to make and sign the proper returns. ' , It is urged for defendants that they can rely upon their 'associates and clerks. This is no answer to the objection. Each inspector judges for himself, and is not required to rely upon another. The proper discharge of the duties of these officers is a subject in which every voter, as well as the persons voted for, has a vital interest, as well as the whole public. I am satisfied, from the numerous election cases which have been before me, that the neglect, if not refusal, to appoint competenhnd suitable persons to act as such election commissioners and inspectors, is the cause of the majoHtyof the election causes which have come before the courts in this state, and an evil that ought'to be corrected. It is insisted, that" the duty of the defendants, in making the appointments, acted in a judicial capacity; and [are] therefore not liable for any mistakes which they might have made. This is true, if it was a mistake; but the charges that it was done with intent to affect the election or result thereof. This is, in effect, chargingtl;lat it was frapdulently done. It is true that t4e word is not is,not necessary; when tp.eact charged is fraudl,lo it is,ll()t necessary to use the word. The
tion officers, the indictment, to be good under section 5515 of the Revised Statutes of the United States, under which it is framed, must state that it was with the intent to effect the election, or the result thereof, otherwise it would be insufficient and quashable. These allegations must, on the trial, be proved to the satisfaction of the jury, beyond a reasonable doubt; if not, no conviction can be had. I am satisfied that the offense is sufficiently charged under the section above referred to and under which it is framed; and that the motion to quash must be overruled.
BARBER V. OONNECTICUT MUTUAL LIFE INS.
(Circuit Court, N. D.Ne1/) York.
BALE AND DELIVERy-GOOD-WILL OF BUSINESS.
The good. will of an established business, is a common subject of contract, although it is nothing but the chance of being able to keep the business which has been established, yet the rights of a purchaser of such good-will will be enforced in equity and recognized at law as effectual between the parties to the contract.
2. INSURANCE COMPANy-AUTHORITY OF GENERAL AGENTS.
Where the general agents of an insurance company, by their representations, induced complainant to invest money in the purchase of the good-will of a special insurance agency; if without right he was deprived of an opportunity of transferring his interest to another, he is entitled to compensation to the extent of his loss.
3. BAME-HESTRICTION ON Am'HORITY.
The general agents of a foreign insurance company in a state other than the state of its creation, having authority to solicit applications for insurance and collect the premiums therefor, and authorized to appoint local agents and pay them reasonable commissions, and obligated to bear all the expenses of the business within their territory, cannot bind the company by their conduct or representations respecting the purchase of the good.wllI of a local agency.
4. SAME-CONTRACT NOT BINDING ON COMPANY.
A contract. which would create the relation of vendor and purchaser between an insurance company and a third !Jarty, and as such outside the ordinary and customary contracts, which are within the implied authority of the generul agents of the company, ill not binding on the company.
Sedgwick, Ames J; King, for complainant. Pratt, Brown J; Garfield, for defendant.
WALLACE, J. The proofs establish, in substance, the theory of the bill that the complainant purchased the good-will of Marvin and of Carr iri their business as local agents for the defendant, upon