The election of Thomas Kittredge, John Kneeland, and Stephen Barker, members returned from the town of An-dover, was controverted by Isaac Osgood and others, on the ground, that the selectmen, who presided at the meeting, when the supposed election took place, neglected to count a large number of the votes given in, and consequently that it was uncertain whether any of the members returned had a majority of the votes.2

, The petition was accompanied by the following statement of facts, signed by the selectmen: — •

“ That they endeavored, with due care and caution, to receive, sort, and count the votes, given in at the said election, and to check the list of voters, as they were given in ; that the votes were received in several small boxes, heretofore used for that purpose; that the whole number of votes counted was four hundred and thirty-six; of which the Hon, Thomas Kittredge had two hundred and thirty-seven. John Kneeland, Esq., two hundred and thirty-eight, and Stephen Barker, Esq., *206two bundled and thirty-five; that on the day after the meeting was held, one of the selectmen discovered, on comparing the names checked on the list with the number of votes declared to be given in, that there were about one hundred and fifteen more names checked than there were votes counted. They have no doubt, that one box, containing about one hundred and fifteen vote<| was accidentally omitted to be sorted and counted; but not discovering the error till the day after the meeting, and the ballots having been scattered, and in part removed by young persons, who had access to the boxes, after the meeting, no proof of that fact now exists, but from the checked list. In sorting and counting the votes, each of the three boxes contained a majority for the three gentlemen declared chosen; and it is our opinion, that if the remainder of the votes, supposed to be given in, had been counted, the majority would still have been as great for the three gentlemen declared chosen.”

This case was referred from the May to the November session,1 at which, the committee on elections reported thereon2 as follows: —

“ At the meeting for the choice of representatives from An-dover, in May last, it was voted to send three representatives to the general court; and at the close of the poll, for the choice of them, the selectmen declared the whole number of votes given in, to be four hundred and thirty-six; that the Hon. Thomas Kittredge, having two hundred and thirty-seven, John Kneeland, two hundred and thirty-eight, and Stephen Barker, Esq., two hundred and thirty-four, were duly elected, and made their return accordingly: but it appeared in evidence to the committee, from the presiding officer of said meeting, that the whole number of legal votes given was at least five hundred and fifty-one, and that the selectmen, (wholly from inadvertence as the committee believe,) omitted altogether to count one hundred and fifteen of that number; and that it cannot be ascertained for whom the votes thus omitted to be counted were given: as no evidence therefore exists that either of the *207members, sitting in this house, by virtue of the retn.rn of the selectmen, had a majority of all the votes actually given in at that election; the committee beg leave to report, and do report, that the said Thomas Kittredge, John Kneeland, and Stephen Barker, were not duly elected, and therefore are not entitled to their seats in this house.”

The report was agreed to by a vote'of 88 to 80.1