and the proper and requisite certificates or returns made, whether the certificates or returns be required under any law of the United States, or any state, territorial, or municipal law; and to personally inspect and scrutinize, from time to time, and at all times, on the day of election, the manner in which voting is done, and the way and method in which the poll-books, registry lists, and tallies or checkbooks-whether the same are required by any law of the United States, or any state, territorial, or municipal law-are kept. Section 2017.

And to the end that each candidate for the office of representative or delegate in congress may obtain the benefit of every vote cast for him, supervisors are required to personally scrutinize, count, and canvass each ballot cast in their election districts or voting precincts, etc.; and the better to enable them to discharge their duties, they are authorized and directed, in their respective districts or voting precincts, on the day of registration, on the day when the registered voters may be marked to be challenged, and on the day of election, to take, occupy, and remain in such position as will, in their judgment, best enable them to discharge their duties; and when the voting has ceased, to assume such position in relation to the ballot-boxes, for the purpose of engaging in the work of canvassing the ballots and performing such other duties as are prescribed by law, and there remain until every duty in respect to such canvass, certificates, returns, and statements has been wholly completed. Sections 2018 and 2019.

An officer whose only official duties relate to the registration of votes as preliminary to the exercise by them of their right to vote, to be present at the polls during the time the votes are being cast, to engage in the work of canvassing the ballots, to personally scrutinize, count, and canvass each ballot cast, and to remain with the inspectors and other officers of such election until the votes are canvassed and counted, and certificates and returns are wholly completed, is an officer of the election so supervised by him within the meaning and intention of the section under and pursuant to which the counts under consideration were framed.

The remaining counts, based on section 5522, proceed against defendant as an individual. This section declares it an offence for any one "to interfere in any manner with any officer of such election in the discharge of his duty." The counts thereunder recharge the same unlawful commingling of votes referred to in the preceding counts, and aver that such unlawful commingling of the spurious with the legal ballots constituted "an unlawful interference with the

judges of the election in the discharge of their duties." I am unable to see any valid objection to them. They follow the law, and the facts alleged constitute, beyond doubt, an unlawful interference within the plain meaning of the statute.

The demurrer will be overruled.

NOTE. A governor of a state is not "an officer of election" within the meaning of section 22 of the act of May 31, 1870, (section 5515, Rev. St.) U. S. v. Clayton, 2 Dill. 219; 19 Am. Law Rep. 737; 10 Am. Law Reg. (N. S.) 737. See Giauque's U. S. Election Laws, 35 et seq.

ADAMS and another, Assignees, v. HYAMS and another.

(Circuit Court, D. Connecticut. August, 1881.)

1. SESSION LAWS OF CONNECTicut of 1860, c. 348, § 5, ConsTRUED LIABILITY OF SURETIES THEREUNDER.

Under section 5 of chapter 348 of the Session Laws of Connecticut of 1860, sureties of an assignee in insolvency are liable upon their bond in case of their principal's default, though it consists in refusing to obey an order made to subvert the assignment. Quare, whether or not an accounting before the county judge is a prerequisite to an action.

2. SESSION LAWS OF 1877, c. 466, CONSTRUED-ACTIONS AGAINST SURETIES.

Chapter 466, of the Session Laws of Connecticut of 1877, did not make an accounting before some specified court a prerequisite to an action against such sureties.

3. SAME RIGHTS OF SURETIES AS AFFECTED THEREBY.

No substantial rights of such sureties were impaired by the repeal of the act of 1860 by the act of 1877.

William Y. Wilson, for plaintiffs.

Philip J. Joachimson, for defendants.

SHIPMAN, D. J. Upon the facts which have been heretofore found the defendants insist that they are not liable in this suit, because they say that, under the fifth section of chapter 348 of the Session Laws of 1860, if the default of an assignee in insolvency consisted in. a refusal to obey an order or decree made to subvert and not to carry out the assignment, an action will not lie against his sureties. upon their bond, and also that an accounting by the assignee before the court of common pleas was prerequisite to a suit against his sureties. The defendants rely upon the construction which was placed upon this section in the case of People v. Chalmers, 1 Hun, 686, and 60 N. Y. 154.

The fourth section of the act provided in substance that after the v.8,no.6-27

lapse of one year from the date of the assignment the county judge, upon the petition of any creditor of the debtor, should have power to compel an accounting by the assignee, and to decree payment of such creditor's proportional just part of the fund. An appeal lay from the decree of the county judge.

The fifth section was as follows:

"Whenever any such assignee or assignees shall omit or refuse to perform any decree or order made against him, her, or them, by a judge or court having jurisdiction, to compel the payment of any debt out of such trust fund, such county judge or court may order the bond of such assignee or assignees to be prosecuted in the name of the people by the district attorney of the county where the said bond is filed, and shall apply the moneys collected thereon in satisfaction of the debts of said debtor or debtors in the same manner as the same ought to have been applied by such assignee or assignees."

Chief Justice Church, speaking for the court of appeals in People v. Chalmers, 60 N. Y. 154, says:

"This language (section 5) clearly refers to the order or decree provided for in the fourth section to be made by the county judge on accounting, or by an appellate court upon the appeal from such order or decree. The word 'judgment' is not used; and, as orders and decrees are specially provided for in the fourth section, it is presumed that the use of these words in the fifth section referred to such orders and decrees as the previous section authorized. However this may be, it is quite evident, whatever court may make the order or decree, it must be one to enforce the duty of the assignee under the assignment."

The facts upon which the court based its decision were different from those in this case. In the Chalmers Case, sundry creditors of the insolvent debtor had obtained judgments upon their claims, and a decree declaring the assignment to be void as to the plaintiffs, and directing the assignee to pay to them the amount of their judgments ratably out of the assets in his hands. The suit was to subvert the assignment, which was virtually held to be void as to all the creditors. The amount of the judgments was more than the trust fund. Upon the assignee's refusal to pay these judgments, suit was brought against the sureties upon their bond. In this case the assignment was not void as against creditors. It was valid when made, but by the decree in bankruptcy it became void as against the assignees in bankruptcy. By virtue of the assignment, a good title to the assigned property passed to the assignee, subject to be defeated by an assignee in bankruptcy, provided the assignment was made within the respective periods, prior to the filing of the petition for an adjudication, specified in the bankrupt act in the case of voluntary or involuntary

bankruptcy. Maltbri v. Hotchkiss, 38 Conn. 80; In re Beisenthal, 14 Blatchf. 146; Mayer v. Hellman, 91 U. S. 496. The title of Pamberger had come to an end, and it was his duty, certainly, after he had ascertained that fact by a judicial decree, to transfer the assets to the assignee in bankruptcy, in whom the title had become vested. For his default in not paying to the plaintiffs the balance of the trust funds in his hands after deducting his fees and expenses, the sureties were responsible, provided the amount which was due had been found by the proper court. It seems to be clear that, as between the plaintiffs and Bamberger, the district court had jurisdiction. Whether under the statute the sureties had a right to insist that the accounting should have been had by a county judge, remains to be considered.

The question whether the fifth section of the act of 1860 made an accounting before the county judge a prerequisite to an action against a surety, is one of difficulty. But this suit was commenced after the repeal of the act of 1860 by chapter 466 of the Session Laws of 1877. Section 9 of this chapter provides simply that—

"Any action brought upon an assignee's bond may be prosecuted by a party in interest by leave of the court; and all moneys realized thereon shall be applied, by directions of the county judge, in satisfaction of the debts of the assignor, in the same manner as the same ought to have been applied by such assignee."

Another section provides that all proceedings commenced under the statute of 1860 might be continued under this act.

Whatever construction may be given to the fifth section of the act of 1860, I do not think that an accounting before any specified court was made by the act of 1877 a prerequisite to an action against a surety. If the dictum of Chief Justice Church is referred to, the meaning of the fifth section was covered; and if the statute may be said to have been a part of the contract of the sureties, it was not an unalterable part of the contract that an accounting must be had by the county judge before the commencement of a suit upon the bond. The details of the statute may certainly be changed without making the obligation of the surety void, provided no substantial right is impaired. By the supposed change no substantial right of the surety was changed or impaired.

The conclusion is that the plaintiffs, as assignees, are entitled to recover of the defendants the sum of $10,000, with costs.

In re SCOTT, Bankrupt.

(District Court, S. D. New York. July 25, 1881.)

1. WITNESS-REFERENCE-REFEREE'S FEES-PARTICULAR ORDER CONSTRUED. The fees of the register to whom a reference is taken under an order directing a witness, who had refused to answer certain questions, to answer each and all of them, etc., "unless the said James W. Gillies shall, within five days from the service of a copy of this order upon him, or his attorney, take an order of reference herein to Edgar Ketchum, Esq., register," etc., must be paid in the first instance by the witness therein referred to, as such reference is taken for his benefit, not for the information of the court.

2. OFFICER OF THE COURT-AGREEMENTS AFFECTING HIS RIGHT TO LEGAL COMPENSATION-RULE.

An agreement that is relied upon to vary the right of an officer of the court to legal compensation is not to be regarded, in case a dispute arises as to its terms, unless it is in writing or entered in the minutes.

In Bankruptcy. Appeal from taxation of costs of bill of the register.

Wm. H. Gale, for appellant.

Fredk. J. Stokes, for respondent.

BROWN, D. J. In a proceeding against the bankrupt, an opposing creditor, Phelps, subpoenaed Gillies as a witness to testify concerning some transactions of the firm of Wright, Gillies & Bro., in which the bankrupt was at one time a partner. Gillies having refused to answer certain questions, claiming that they were improper, the matter was certified to the court, and, after hearing, the court, on December 14, 1880, ordered

"That said James W. Gillies be, and he hereby is, directed and required to answer each and all of the questions propounded to him upon his said examination, and to produce the accounts called for on his said examination, unless the said James W. Gillies shall, within five days from the service of a copy of this order upon him or his attorney, take an order of reference herein to Edgar Ketchum, Esq., register, to take testimony on the question whether there was an account stated between the firm of Wright, Gillies & Bro."

The attorney of Gillies thereupon entered an order of reference to the register to take proof of the facts concerning the legality of the subject-matter of the inquiry, and by a subsequent order his attorney procured an enlargement of the scope of the inquiry. Upon this interlocutory reference a little testimony was taken and numerous adjournments were had, the examination of the witness in the original proceeding being in the mean time suspended. The bankrupt having thereafter effected a composition with his creditors, which has been approved, the register presented to the attorney of the witness a bill of $49 against the firm of Wright, Gillies & Bro. for the pro