Brookfield

¶1The election of Francis Howe, returned a member from this town, was controverted by Ebenezer Merriam and others, on several grounds stated in their petition, upon which the committee on elections made the following report:—

¶2“ The petitioners assumed the following grounds:—

¶3‘ First. Because, at the meeting held for the choice of representatives in said Brookfield, in November last, the votes of one or more legal voters, duly qualified to act in said meeting, were rejected in the said choice.5

¶4‘ Second. Because the votes of one or more persons, who were not legal voters, were received and counted in said choice.’

¶5‘ Third. Because the names of one or more voters who applied, or caused application to be made, to have their names placed on the list of voters, were not placed thereon, and they were thereby excluded from voting, and prevented from offering their votes.’

¶6‘ Fourth. Because the said Francis Howe, Esq., was not chosen as representative from said town in conformity with the provisions of the constitution and laws of the commonwealth.’

¶7In support of these grounds, the petitioners produced, first, the record, by which it appeared, that the whole number of ballots was 538; necessary to a choice, 270; Francis Howe had 270; Mr. Walker had 264; Mr. Morse had 4.

¶8The petitioners then produced evidence tending to show, that one William Be mis was not a legal voter, and had voted at that election for the sitting member.

¶9The committee, however, — perceiving that if his vote should be rejected, the return would still stand, whole number, 537; necessary to a choice, 269; Francia Howe had 269; Mr. *460Walker, 264; and Mr. Morse, 4; and that the return of Mr. Howe would still have been correct, — called upon the petitioners to produce further testimony under some one of their other propositions.

¶10The petitioners thereupon undertook to show that Benjamin J. Lincoln, Jonas Bellows and Philo Ledoyt were all legal voters, and were not allowed to vote.

¶11But it appeared that Jonas Bellows, being informed that his name was not on the voting list, did not go to the meeting at all, and that Benjamin J. Lincoln and Philo Ledoyt, though they attended the meeting and tendered their votes on the first or two first ballotings, yet that neither of them tendered a vote on the balloting which resulted in the election of Francis Howe.

¶12The committee could, therefore, see no cause to complain of the rejection of votes which were not offered; and as the acceptance or rejection of the vote of William Bemis would not have affected the result, they recommend, that the petitioners have leave to withdraw.”

¶13The report was agreed to,1 and it was accordingly ordered, that the petitioners have leave to withdraw.