The election of Ziba Cook, returned a member from the town of Pelham, was controverted by Edmund Miriek and twenty others, on the following grounds alleged in their petition, to wit: that the election was effected by forty-eight votes for the sitting member, against forty-seven given for other persons ; that one vote, which was for the sitting member, was received and counted, after sufficient time had been allowed for all persons to vote, and the poll had been closed, the box turned, and the selectmen were counting the ballots ; and that two persons, who had removed from Pelham, were allowed to vote in the election, and did vote for the sitting member.

The case being referred to the committee on elections, affidavits were laid before them, to prove the allegations in the petition. From one of them, it appeared that three votes, two of which were for the sitting member, were received after the poll had been closed, as alleged in the petition ; and in another it was stated, that one vote was so received and counted for *263the sitting member. But there was no direct evidence, that the two persons voting, who were, alleged not to be entitled to vote in Pelham, for want of residence, voted in the election at all; and no evidence whatever, that if they did vote, they voted for the sitting member,

The committee reported, merely, that they had attended to the subject, and the member returned was entitled to Ms seat. The report was agreed to.

[Setting aside the allegation that two illegal votes were given in, of which there seems to have been no competent evidence; and assuming that the receiving of votes after closing the poll, however irregular, would not invalidate the election, unless the votes, so received, if counted, would affect the result of the election, as declared; the inquiry would then be, whether the three votes in question would have any such effect. If one of them only was for the sitting member, and the two others for another candidate, and the whole were rejected, the former would still be elected by a majority of two votes; if two of them were for the sitting member, and one only for another candidate, the residue of the votes would be equally divided, and there would be no choice. The evidence leaving it uncertain, whether the sitting member received one only or two of these three votes, the committee were probably not satisfied, that the receiving of them would affect the result, and therefore had no alternative but to confirm the election.]