The election of Eli Moody, returned a member from this town, was controverted by William Barton, on the ground, that at the balloting when the election took place, the check list was not used.

The case being referred to the committee on elections, it was in evidence before them, by the testimony of one of the selectmen, that at the second balloting for a representative, when a choice was declared, the names of the voters were none of them checked, as they voted, either by the witness, or by the other selectmen, none of them supposing it to be necessary.

It was also in evidence, by the affidavits of all the selectmen, that at the election in question, at which they presided, on the first balloting for representative, the selectmen called the names of all the legal voters, and checked all who came forward to vote ; that at the second balloting, the selectmen all stood by the ballot-box, with the check list before them, and with their eyes on the voters as they came up to vote; that they personally knew every man whose name was on the check list, and if any man had come forward to vote, whose name was not on the check list, they should have detected him at once; that they were confident that no person voted at the second balloting, whose name was not on the check list, and who had not been called; that there could be no question, but that the member returned was fairly elected at the second balloting, by a majority of the votes then cast; that from their knowledge of the persons of the voters, and from the position of the affiants when the votes were given, no person could have voted more than once at the second balloting, without being detect-*507eel by the selectmen; that they were confident that, in fact, no person did vote more than once at said second balloting; and that they had never heard any suspicion expressed, by any person whatever, that the member elected had not a majority of the votes, or that any votes had been cast at that election by persons not legally qualified.

The committee reported against the validity of the election, and the house thereupon declared the seat vacant, allowing the member pay up to that time.1