The matter is involved in some obscurity, but we think it the most reasonable construction of the Jaw that clerks of election merely authenticate or attest the act of the judges in signing the returns, and that they are not required, and do not in fact, certify as to the correctness of the count, which is made by the judges themselves. The statute itself makes a distinction between the duties of judges and clerks of election, in that the former are required to certify to the result, and the latter to attest the signing. The word "attest," in its ordinary sense, also confirms the construction which we have herein given to the statute. If clerks of election are to be held responsible for the correctness of the certificate of the judges, it would seem that some provision ought to be contained in the law to give them a view of the ballots; otherwise they will be compelled to certify to facts of which they have no personal knowledge. It would seem, also, that they should be required to sign the certificate as well as the judges, and not merely to attest the signing. For these reasons we hold the demurrer to be well taken, and order the same to be sustained. BREWER, J., concurs.
DAVIS and others.
(District Court E. D. Missouri, E. D. Novemper 21, 1887.)
INDICTMENT-JUDGES OF ELECTION-JOINDER OF PARTIES.
In Missouri, judges of election and clerks of election have several and not joint duties; and where they are jointly indicted for neglect of duty the indictment will be held bad.· Persons who, as officers of an election, have different duties to perform, cannot be jointly indicted for neglect of theirsev-, eral duties. To authorize a joint indictment, the duty imposed on the defendants must be a joint duty. .
Th08.P. Bashaw, U. S. Dist. Atty., and D. P. Dy.('Jf, special counsel, for plainti.ff. O. M. NapwH, for defendants.
THAYER, J. In the case of U. S. v. Dat"ia et al., the indictment is against six persons, four of :whom are described as judges of election, and the other two as clerks of election. The indictment is drawn under the first clause of section 5515, Rev. Sf. U. S., which provides, in substance, that any officer of an election at which a representative in congress is voted for, "who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any state or territory thereof," shall be deemed guilty of an offense, etc. These defendants are charged jointly, in one and the same count, with neglecting and refusing at a congressional election to perform certain duties imposed upon them, or supposed to have been imposed upon them,
by the Jaws of the stateoLMissourii' that iato say, wHh'neglecting and refusing to "sign and attest" the poll-book, and to set down at the foot thereofthe total number of persons marked "voted" in the poll.book. If the duty alleged to have been violated was a joint duty imposed alike on judges and clerks orelection by the laws of the state, they might be indicted jointly for a willful omission onefusal to perform the duty. But it so happens that the laws of the state of Missouri do not impose a joint duty on judges and clerks of election, as was held by the United States circuit court for this district in the case of U. S. v. Green, No. 2,806, tried at the March term, 1887, ante, 619. Judges and clerks of election have 8mcil, and not joint, duties to perform. Judges of election under the state law ce1!tify, under their hands, as to the result of an election. Olerksof elootion merely attest the signatures of the judges to the certificate. The judges receive and count the ballotsi the clerks write" voted," or "rejected," in the poll-hooks, opposite the voter's name, as the votes areaceept.edorrejected by the judges. They also enter the voting number of the ballot. No such joint duty is imposed on judges and clerks of election as this indictment describes, and for that reason it seems clear that the indictment is bad, and the demurrer well taken. Com. v. Miller, 2 Pars. Eq. Cas. 480; Com v. Gray, 2 Duv. 373; McCrary, Elect. § 481, and cited. The indictment was probably drawn on the theory that the defendants, having violated the same clause of the federal ,statute at about the same time, might be jointly indicted therefor, although their duties were of a different:character. ' -If coirect, it would follow that two persons accused of separate acts of larceny, committed at about the ,same tip1e,might be jointly charged 'in ,flie'saIpecount of an indictment. Noone, I apprehend, wollld attempt to maintain such a proposition. The to ·the 'indictment' is' that the, particular, neglect of duty on,thepart of the judges of Alecti9n, which creates, the offense as to them, was no neglect of duty, and consequently no offense so far as the clerks of election were concerned, and vice ver8a. , To warrant. a joint indict,ment against several persons, under the clause of the statute above referred to, for neglecting and refusing to perform a given duty, it should appear that the obligation to perform the duty in question rested alike on all the defendants proceeded against. If different duties'are imposed on different officers of election, and each fails in the disoharge of their several functions I.they should be proceeded against separately. . The demurrer is accordirJglysustained.
TlIE ADA: A.
THE JESSE MURDOCK.
(District (Jourt, D. Mas8achu8ettB. January 111', 1888.)
COLLJSJ.ON-ApPROACHING VESSELS-PORT TACK-STARBOARD TAC,X.
Where two vessels are approaching each other, the one close-hauled on the port tack, and the other close-hauled on the starboard tack, it is the duty of the former to keep clear away, aDd .a failure so to do renders her lia'. ble should a collision result. A vessel hove to, and making both headway and leeway, is a vessel elOB'hauled, within the meaninKof the rul.es of navigation.
'In Admiralty. for damages. . ,. ,Crollls-1ibllls for a collision between the three-ma.sted schooners AdaA-. esse Mu,rdoc.k.' : " ,. . podge, for The AdlJ.1\.:. Kennedy. . (J. T. RUiliiell, Jr. '> fQr The J Murdock.
collisipillhappe[}ed off Cape Cod , between lightalldthEl Pollock just before daybreak on the ,ing November, 1885. The weather at the time was clear, the.w41clwesterly blowing.an eight-knot breeze, and the sea snlooth. The,Kenne4y, was heavily Ipaded with ice; the Murdock was in ballast. Both were the and for some hours before the oollisien,·had been beating back and forth off the cape, waiting .light to ,pass overNllntucket shoals.. As, they neared each other, the KennedY-was close-hauleq. (j)n the port taqk heading N. by W., and ;going at the:rate·ofsix <>rseven knots. ',['he Murdock was partly Doye, to on the, starboard tack; tbat,isi'she was under spanker, foresail, .and :ma.insail close-hauh!d 9n the starboard tack, and a full jib over to windward, andherirwheel was bard down, butnot lashed. 'She wa$',headhlg from S. W. W. by S., keeping a steady course,and making froIU one to two knots, part!;)f to leeward, The Murdockfirst ,made the, Kennedy and her green light from three to fou r points' on the port or 'lee· bow, a mile or more distant. Later, the Kennedy saw the Murdock half or three-fourths of a mile away, opening her red light from thr:eeanda half tofouq)oints on the starboard or lee bow. lIer course then .lilY aCI:Ossthe b0Wsof t.i;le Murdock. · The Murdock kept courEle untiljustbefpre the collision, wben her wheel was,put hard up,and being light she fell off two or three points. The Kennedy, the Murdock to be sailing close-hauled on the starboard tack and to have the right of way, first ported to pass to leeward, and then as the red light still continued to show on the lee bow put her wheel hard a-port and cast off the spanker sheet. The effect of all this was that she fell off three points only, and this was not enough to go clear. The vessels came together nearly end on, the starboard bow of the Kennedy
'" ,liKUlON" J.