The election of Luther W. Rugg, returned a member from the town of Sterling, was controverted by J. N. Tolman and fifty others, on three grounds: — *

1st. That the poll was opened after five o’clock in the afternoon.

2d. That the presiding selectman improperly stopped debate.

3d. That the poll was opened in a disorderly manner, and votes were deposited in the ballot-box, before the names of the voters were called.

It appeared, in evidence, before the committee on elections, to whom the case was referred, that on the second of November, the day of the annual state election, there was no choice of representative, and that the meeting was adjourned until the next day, at ten o’clock in the forenoon, on which day three unsuccessful ballotings took place, at which the whole number of votes was, on the first, 318, on the second, 319, and *590on the third, 328, and of which, the sitting member received, at the first, 149, at the second, 153, and at the third, 160 votes.

The report of the committee then proceeds as follows :—

“ Upon the declaration of the third balloting, a motion was made ‘ not to send,’ which, upon a poll of the meeting, was declared not to be carried. There was then a motion made to adjourn, which was tried in the same way, and decided not to be carried. The chairman declared the vote, and at the same time called for another balloting. It appeared also in evidence, that at the same moment in which the chairman was declaring the result of the vote on the motion to adjourn, and calling for a new balloting, a motion was made that ‘we now proceed to a new ballot.’ This motion, the chairman did not hear; nor did he know of it until sometime afterwards. To this motion, Dr. Daniel Mann rose to speak and addressed the chair. He proceeded to speak, and the chairman called him to order, as discussion was not in order when the balloting was proceeding. After which, Dr. Mann says he attempted to speak two or three times, but was not allowed. He then rose and remonstrated against the proceedings as irregular and illegal, and advised all who were opposed to them to leave the room and not vote, and a large number then withdrew with Dr. Mann. The voting then proceeded quietly, and the poll having been kept open a sufficient length of time, Air. Rugg was declared elected; he having received 148 votes out of a poll of 161.

In the opinion of the committee, the decision of this case turns upon the question, whether the poll was opened, for the choice of representative, after five o’clock in the afternoon.

The petitioners produced a number of witnesses, who testified that it was past the hour of five, when they heard the chairman declare that the poll was open. Some ten or twelve watches were examined at or about the time that Dr. Mann tried to get the floor to speak, and they showed that the hour of five had gone by. By Mr. Samuel Lawrence’s watch, it was five minutes past five. Mr. Hobart said it was twenty minutes past five. Mr. George Buttrick said it was three *591minutes past five when the chairman declared the poll open. Joel Pratt said it was between four and five minutes past five when the poll was declared open ; other witnesses testified to the same general facts.

On the other hand, the chairman of the selectmen, before opening the poll in the morning, compared his watcli with that of Dr. Peck, the town clerk. The town clerk’s watch was from ten to fifteen minutes faster than the chairman’s watch.

He (the chairman) then stated to the town clerk, ‘I shall be governed by your watch.’ When the chairman was told by Mr. Iiosmer, on the day of election, that it was past five when the last balloting had commenced, he replied, ‘it is not past five by the town clerk’s watch, he had been by that all day, and should continue to go by it.’ And it appeared in evidence, that it wanted ten minutes to five, when the chairman declared the poll open for the last balloting. The town clerk testified, that he compared his watch with two or three watches that evening, and they were slower than his; one, Mr. Raymond’s watch, had just come back from Worcester, where it had been to be regulated, and it was slower than the town clerk’s watch. The town clerk’s watch also agreed with his clock at home. It appeared in evidence, also, that esquire Houghton told the chairman of the selectmen, when he declared the poll open, ‘ that he was just in time.’

The discrepancy, as to the time of opening the poll, may be accounted for by the fact, that the witnesses examined for the petitioners did not know that the poll was open, until the chairman called Dr, Mann to order. The poll had been opened before that time, and all the names beginning .with ‘ A,’ had been called.

As regards the second charge, that the chairman would not allow debate, we have the testimony of the chairman, that he heard no motion made ‘ to proceed to another ballot,’ and it was this motion which Dr. Mann rose to discuss. The chairman, not aware that any motion had been made, declared Dr. Mann out of order. It appeared in evidence, that the motion here referred to was made by Deacon Cyrus Holbrook, who was *592examined by the committee. He said, he ‘ noticed that the chairman did not hear his motion.’ ‘ I saw,’ said he, ‘ the impropriety of it, and did not renew it, and I considered my motion as withdrawn.’

As regards the third charge, that the poll was opened in a disorderly manner, and that votes were put into the ballot-box before the names were called, the evidence is, that at the time that Dr. Mann rose to speak, and while he was attempting to speak, there was considerable noise and disorder. The meeting was excited, but it does not appear that any ballots were put into the box, without the names of the voters being checked; as strong proof of this, the chairman of the selectmen testified, that he examined the checks on the voting list, after the meeting, and found the checks to correspond exactly with the number of votes cast.

These, the committee believe, are the substantial facts as developed by the evidence, and they decide that the petitioners have failed to make out their case, and that the sitting member, Luther W. Rugg, was duly elected a representative from the town of Sterling, and that he is entitled to his seat.”

The report was agreed to.1