The election of Leonard Hathaway, the member returned from the town of Dighton, was controverted by William Bay-*176lies and others, on the following grounds, alleged in their petition, namely:-

That the meeting was conducted illegally and fraudulently; that the selectmen kept it opon one hour and more, after they had sorted and counted the votes, and during that period received several additional votes ; that they destroyed several votes ; that after counting the votes, they returned them into the box, apparently with an intention of counting them again ; that they rejected one legal voter; and that several persons put into the box more votes than one.

The committee on elections, on the eighth of June, reported on this case as follows1:-

'• A town meeting was legally holden in said town, on the ninth day of May last, for the choice of a representative to the present general court; at which the selectmen of said town proceeded to receive votes, and did receive two hundred and fifty-four votes, and declared that Leonard Hathaway, the sitting member, had one hundred and twenty-seven votes, and Nathaniel Wheeler one hundred and twenty-seven votes, and that there was no choice.

The committee further find, that the selectmen received the vote of a Mr. Tubbs, and refused to receive the vote of one Ebenezer T. Lincoln, which was for Nathaniel Wheeler, on the apprehension that lie had not the property req uired by the constitution, to entitle him to vote in said election. The committee are satisfied that Mr. Tubbs was not legally qualified to vote in the said election, he not having been a resident in said town for one year next preceding ; but they are of opinion, from an inventory of the property of said Lincoln exhibited, that he was constitutionally qualified to vote in the choice of a representative.

The committee further find, that, on the declaration being made by the selectmen, that there was no choice, they proceeded again to receive votes for a representative, which, on being sorted and counted, were for Leonard Hathaway one hundred and thirty-six votes, and for Nathaniel Wheeler one *177hundred and thirty-four votes, and that Leonard Hathaway was declared chosen, ‘ if the meeting was legal.’ The committee, however, have strong reasons to believe, from the depositions of sundry persons present at said meeting, that several persons voted twice, either intentionally or by mistake, at said balloting, whereby it is rendered wholly uncertain whether the said Hathaway had a majority of the votes of the voters then voting in said election. And inasmuch as it is thus uncertain from the foregoing statement, whether a majority of the legal voters present at said meeting, and voting in said election, were for the said Leonard Hathaway, — as well as for the reasons first stated, — the committee ask leave to report, and do report, that the supposed election of the said Leonard Hathaway is void, and that he is not entitled to a seat, and that the same ought to be declared vacated.”

The report was agreed to, by a vote of 99 to 8.

Nathaniel Wheeler, the candidate voted for as abovemen-tioned, then (on the same day) petitioned the house that he might be admitted to a seat, on the ground, that he had been duly elected.1

The commitree on elections, to whom his petition was referred, reported at the January session following, that no evidence had been produced before them to show that the petitioner had been elected a member from the town of Dighton, and, therefore, that he have leave to withdraw his petition.2 The report was agreed to.

[The committee having found that one vote was to be added to the whole number, at the first balloting, and one to be deducted therefrom, the aggregate would remain the same, and the question would be, for which of the candidates, respectively, these votes were to be counted. Lincoln’s vote would have been given, and was therefore to be counted for Wheeler. If then Tubbs’s vote had been given for Wheeler, and included in the vote counted for him, it being deducted therefrom, Wheeler’s vote would have stood as before, and there would have been no choice. If on the other hand, *178Tubbs’s vote had been given fox Hathaway, and included in the votes counted for him, Wheeler’s vote would have been increased by Lincoln’s vote to 138, and Tubbs’s vote being deducted from Hathaway’s vote, the latter would have been reduced to 136, and Wheeler would consequently have b'-eu elected. When, therefore, the committee, upon Wheel petition, reported, that no evidence had been produced beJ them to show, that the petitioner had been elected, it was probably upon the ground, that he had been unable to pr that Tubbs voted for Hathaway.]