Gordon

Murray, C. J., and Bryan, J., concurred.

The defendants were Judges of Election, and were indicted for refusing to receive the vote of one Binswanger, who was challenged on the ground of alienage. The defendants declined administering the oath of qualification, upon the ground that the certificate of naturali *236 zation was the best evidence, and that Binswanger should have produced it. This was certainly an erroneous conclusion. The 29th-sec-tion of the election law provides, that to the person challenged, the Board of Judges, in their discretion, may administer an oath, &c.; and the 30th section provides, ‘‘ If the person thus challenged shall take the oath as tendered to him by the Board of Judges, he shall be admitted to vote,” &c.

One of the allegations of the indictment is the refusal of the judges to administer the oath. It will be seen, however, from the above quoted section of the law, that this is a matter left to their discretion; and very properly so, because in many instances it might be an act of supererogation. If the challenged party, upon being questioned, was to admit that he had not been naturalized, or that his naturalization certificate had been issued by…