
    GENERAL COURT,
    (E. S.) APRIL TERM, 1799.
    Hatcheson vs. Tilden & Bordley.
    This was a special action on the case. The declaration stated, that the defendants were summoned as judges of the sheriff’s election on the first Monday of October 1794. That the plaintiff was a candidate for the sheriff’s office, and had the necessary qualifications according to law; that he had a majority of legal votes. Nevertheless the defendants, well knovvihg the premises, refused to> return him as sheriff elect, to the damage of the -plaintiff 5000Í. current money. The general issue of not guilty pleaded.
    1. It appeared on the trial of the cause, that the plaintiff” had 453 votes, Jones 443, and Hall 270. That the plaintiff received the amount of real and personal property required by the constitution, on the third day of the election, and not before. That the two other candidates had acquired it previous to the election. The defendants made a special return on the 8th of November 1794; but the governor and council refused to receive the return, and sent it back as informal, declaring that the defendants were the sole and exclusive judges of the necessary qualifications. Upon which a second return was made, in which Jones and Hall were declared duly elected for the office of sheriff of the county of Kent.
    
      Wright and Scott, for the plaintiff,
    contended, that although the plaintiff had no real estate, yet if he had personal estate to the amount of 1000Í. it was a sufficient qualification to make him eligible as sheriff. That the word “and,” as expressed in the constitution,«having real and personal property,” meant having real or personal. the disjunctive; and that such was the intention of the framers of the constitution. That the intention and meaning of the constitution was, that if the candidate had real or personal property to the amount required, it ¡was sufficient to make him eligible.
    Chase, Ch. J. The proper qualification required by the constitution is, that the candi ate shall, at the time he is voted for, be an inhabitant of the county, above twenty-one years of age, and bare real and personal property within the- state above the value of 1000Í. That the word “and" is used conjunctively, wherefore both real and personal property to that amount are expressly required, and cannot be . spense i with. All votes given for a candidate not having such qualifications, are to be thrown away and rejected as having no force or operation in laiv. The plaintiff can only be entitled to such voten as were given alter he received the necessary qualifications, all votes in his favour previous being illegal and void.
    2. The plaintiff not having given evidence of his possessing real property previo to the election, his counsel offered to the jury a deed, executed before the election, by James Bunn, to the plaintiff and Edward Worrell, as trustees of an insolvent debtor, (the plaintiff being the survivor of Worrell,) 'hr real and personal property, as evidence of the pia.nti Fs qualification.
    
      I\e;j. for- the defendants, objected to this deed as incompetent and inadmissible, alleging that the plaintiff held the property not in his own light, but in trust for others.
    Chase, Ch. J. By tifia deed the plaintiff held the property as a trustee: it cannot be responsible for the debts or contracts of the plaintiff, but can only be disposed of according to th« trust reposed in him by the deed. The constitution requires as a qualification for sheriff, such property, rea! and personal, above the value of 10001. as will be ans verable, together with his securities, for the. faithful performance of the duties of his office. The property conveyed by this deed cannot be amenable for such purposes, and therefore the evidence cannot be admitted.
    3. The plaintiff's counsel then offered to give evidence of a right of the plaintiff to a pew in a church, as heir at law of his father, who held the said pew; they alleged that this pew vas real property, which had fallen to the plaintiff by descent.
    
      But this was rejected by the court without argument.
    It appeared that the plaintiff had received the nec.e.ssa.a;y qualifications about 12 o’clock on the third day of the election, and from the state of tiie polls, if be bad rereived all the votes taken after that time, he could not have been elected.
   Yerbict and judgment for the defendants»  