UNITED STA.TES 11. CLARK.
the lessor shall have the free use of it; as, during a summer theatrical season. In view of all this, the ceasing to give theatrical. representations after },fay 11, 1878, because of the failing health of Cheney, and of his prior loss. of money by the theater. was a risk which the lessee and not the lessor assumed. Both parties knowing that the theater WllS on ground leased to Cheney, a discontinuance of the use of the building as a theater by Cheney, without a devotion of. it to other purposes, would naturally involve non-payment of rent by Cheney, and eviction of Cheney and the plaintiff. Hence, while there is a provision that, in case Cheney should "elect to discontinue the use of the said building as a theater, and to devote it to other purposes," he should refund the proportional part of the $1,000, the election being intentional and voluntary, and involving a use of the building for other purposes, as well as a discontinuance of the use of it as a theater, no provision is made as to a mere discontinuance of the use of the building as a theater, unaccompanied by a devotion of. it to other purposes. That might be caused by death, or ill health, or insolvency, and was a risk taken by the lessee. This view of the lease shows,.also, that the consideration did not fail in whole or in part. The plaintiff obtained, and has enjoyed, all the rights which the lease conferred. There is no proof that Cheney or the defendant devoted the building to other purposes after Cheney discontinued its use as a. thea.ter. The fact agreed to by the defendant is only that Cheney, being in failing health, and having already lost a considerable dum of money by the theater, ceased to give theatrical representations in it, and they were never resumed by him before his death, nor since then by his executrix:. The causes of action set up thus fltHing, there is no occasion to construe the statute of Connecticut (Rev. 1875, p. 888, §§ 4, 5, 6) in regard to the time within which rights of action must be exhibited to an executor, or to determine when any supposed right of action in this case accrued. Let a finding for the defendant, and a judgment accordingly, with costs, he entered.
UNITED STA.TES 'U. CLARK.!
(Oircuit Court,E. D. New York. June 12,1884.)
SUPERVISORS Oil' ELECTION l:'lCRU'fINIZE BALLOTS. DUTIES UNDER
REv. ST. H 2018, 2019'- RIGHT TO
Under section 2018 of the Revised Statutes, which provides that the supervisors of election must" personally scrutinize, count, and canvass each ballot," a supervisor has the right to have each ballot in his hands for such reasonable time as may be necessary for him to scrutinize it with care.
Conviction under Rev. St. § 5522.
Motion for new trial.
Reported by R. D. & WylIys Benedict, of the New York bar.
Anthony Barrett, for defendant. BENEDIOT, J. The accused was charged, under section 5522 of the Revised Statutes of the United States, with obstructing, hindering, and interfering with Charles C. Wessel, a United States supervisor of elections, in the performance of his duties at an election held November 7, 1882, in the Twenty-first ward of the city of Brooklyn, at which election a representative of congress of the United States for the Third congressional district for the state of New York was voted for. A verdict of guilty having been rendered, the accused now moves for a new trial upon the ground that the acts proved to have been done by him do not constitute an offense against the laws of the United States. There is no dispute respecting the facts. At the election referred to the defendant was chairman of the board of canvassers, appointed pursuant to the laws of the state of New York to canvass and count the vote at the election referred to. Charles C. Wessel was a supervisor for said election, duly appointed. pursuant to the laws of the United States. At the close of the polls, the board of canvassers, upon receiving from the board of inspectors of election the ballot. boxes containing the ballots cast at such election, proceeded to count the ballots, as required by the law of the state. In the course of the canvass a question arose between the chairman of the board of can· vassers and the United States supervisors respecting the authority of the United States supervisors to have the ballots passed to them for the purpose of being counted by them. The United States supervisors claimed the right to take each ballot in their hands for the purpose of canvassing, scrutinizing, and counting the same before it was returned to the box. The chairman of the board of canvassers claimed that the right of the United States supervisors was limited to watch· ing the state canvassers, and to scrutinizing the ballots while being counted by the state canvasser, and insisted that the United States supervisors had no right to take the ballots in their hands. What was done thereafter by the accused, as proved on the trial, is conceded to constitute an offense against the laws of the United States, provided the United States supervisors had the right which they claimed, viz., to be permitted to take in their hands each ballot in the box of ballots casl for representative in congress, for the purpose of canvassing, scrutinizing, and counting the same. Whether the law of the United States confers such a right is the only question presented for determination on this occasion. The duties of a supervisor of election prescribed in section 2018 of the Revised Statutes are as follows:
.. To thb end that each candidate for the office of representative or delegate · in congress may obtain the benefit of every vote for him cast, the supervisors of election are, and each of them is, required to personally scrutinize, count, and canvass each ballot in their election district or voting precinct cast, whatever may be the indorsement on the ballot, or in whatever box it may have been placeLl or be found."
UNITED STATES V. CLARK.
Dy section 2019, the supervisors of election are required, at the closinC1 of the polls, "to place themselves in such position, in relation to theOballot-boxes, for the purpose of engaging in the work of canvassing the ballots, as will enabLe them to fully perform the duties in respect to such canvass provided herein, and shall there remain until every duty in respect to such canvass, certificates. returns, and statements has been wholly completed." It wit! be observed that the statute requires the of election to "engage in the work of canvassing the ballots," and to "perBonally scrutinize, count, and canvass each ballot." This language, by necessary implication, authorizes the supervisor to do all acts necessary to enable him to perform the duties imposed. The ballots cast may differ in form and in quality of paper, as well as in the matter written or printed upon them. Clearly it would be impracticable, if not impossible, for the supervisor to scrutinize, canvass, and count each ballot, unless he be permitted to have the ballot in his h3.uds for snch rL"asonable time as may be necessary for him to scrutinize it with care. The duty imposed upon the supervisor is to personally scrutinize, count, and canvass each ballot. He cannot be confined to the act of watching the state canvassers while they canvass and count the ballots. He has, therefore, by the statute, a right to take each ballot in his band for the purpose of canvassing the same before it is returned to the box. Confirmation of this construction of the statute is fonnd in the statute of the state, which furnishes the authority by which the state canvassers take each ballot in their hands. The words of the state statute, from which the state canvassers derive their anthority, are these: "shall canvass and count the votes." Act of May 7, 1872, as amended in 1873 and '1874, § 13; Laws N. Y.1872, c. 575; Laws N. Y. 1873, c. 365: Laws. N. Y. 1874, c. 633. By virtue of this language, the state canvassers exercise the right to take each ballot in their hands. The words used in the United States statute are, "personally scrutinize, count, and canvass each ballot." If the words used in the state statute confer upon the state canvassers the right to take up each ballot, the words used in the United States statute must be considered to confer the same right upon the United States supervisor. I entertain no doubt, therefore, that the accused was properly convicted, and I am permitted to say that Mr. Justice BLATCHFORD, to whom this opinion has been shown, concurs with me in this conclusion. The motion for new trial is, accordingly. denied.
F,&DE2AL BEPOBTBB, UNITED STATES
(Circuit Court, D. Massachusetts. October 31, 1884.)
LAw. To change, by any kind of manipulation, silver, copper, or any other metal into the resemblance of some coin of the United States, or foreign coin, made current by law, or current as money in the United States, by gilding, electroplating, or any other process, or coloring it so that it resembles gold, is an indictable oliense, under chapter 24. act of Congress, January 16,1877; and a party so doing cannot excuse himself by showing what was his intention, or that he did not intend to use the coins he so made for fraudulent purposes, or that they should be so used by others, or that he was ignorant of the law.
GILDING OLD ENGLISH SUIJ,LINGS -
This was an indictment under the act of January 16, 1877, t. 24, for falsely making, forging, and counterfeiting coins in the resemblance of gold sovereigns. It appeared in evidence that the defendant, who was a gold plater, plated with gold certain English shillings of the reign of George III., the result of which was that they closely resembled gold sovereigns, and were afterwards passed as such. There was no allegation in the indictment tha,t the acts were done with intent to defraud, and it appears from the evidence that, in fact, the defendant had no such intent. Oharles Almy, Jr., Asst. U. S. Atty., for the United States. A. W. BOM'dman, for defendant. WEBB, J., charged the jury as follows: "The defendant stands charged with an offense under a law designed to protect the community against the circulation of spurious money. Questions of law are presented which are of great tance, and my opinion of which can be reviewed and corrected, but not by you. You will take the rule which I give as correct. "1 instruct you as matter of law that to change, by any kind of manipulation, coin of silver, copper, or any other metal into the semblance of other coin by gilding, electro-plating, or any other process, or coloring it so that it resembles gold, is within the law. It must be made to resemble some coin of the United States, or some foreign coin, made current by law o! current as money in the United States," After stating the facts, the judge further charged the jury as follows: "Under this statute the unauthorized making or forging or counterfeiting coins in the resemblance and similitude of any foreign gold or silver coin which, by law, is current in the United States, or in actual use and circulation as money within the United States, is ab, solutely prohibited, and whosoever does the prohibited acts is subject to the penalties of the law. The only question is whether the accused did, in fact, forge or counterfeit Buch coins as charged against