The election of Jonathan Ellis, returned a member from the town of Topsham, was controverted by John Rodgers and others, a committee appointed by the town for that purpose, upon the following facts, which appear from the memorial, depositions, and copies of the proceedings on file:—
The selectmen of said town made their warrant, for a town-meeting to be held therein, on the third day of May, for the transaction of certain town business, which appears to have been adjourned from a previous meeting, and also for the election of a representative. The warrant was committed to a constable, who pursued its directions in due form. A few days previous to the meeting, and after the inhabitants had been notified of it, one of the selectmen, with the assent of another, interlined an article in the warrant, previous to the article for the choice of a representative, in the following words, viz: “ To see if the town would send a representative to the general court the present year,” and also made some other slight verbal alterations. A meeting was held, agreeably to the notice, and, after choosing a moderator, the town voted not to send a representative. The other subjects contained in the warrant were then disposed of, and the meeting was declared by the moderator, as testified to, by some of the deponents, to be dissolved. Two of the collectors then came forward and had some of the taxes on their lists abated by the *44selectmen, as sworn to in some of the depositions, but by a vote of the town, as appears by a copy of the proceedings of the meeting certified by the town clerk. Several of the voters had at this time left the meeting, supposing the business to have been completed. A motion was then made, seconded, and put, to reconsider the vote not to send a representative, and was decided in the negative. One of the selectmen then called upon the voters to bring in their votes for a representative. Several of the inhabitants brought in their votes accordingly; some refused to do so; and others withdrew from the meeting. The votes were received by the selectmen, and, upon the third balloting, Jonathan Ellis was declared to be elected.
Several of the inhabitants, deeming the proceedings to be improper, petitioned the selectmen to call a town-meeting to consider the subject, and a meeting being convened accordingly, the above mentioned committee was appointed to petition against and to controvert the election as illegal.
The memorial was presented at the June session,1 and referred to Messrs. Montague, Norton, and Ely, who reported a reference of the subject to the next session.2
At the January session, the memorial was again taken up and referred to Messrs. Ely, Foster, and Upham,3 who made the following report thereon:—
That, having heard the parties and attended to the evidence, they were of opinion, that the meeting, at which Ellis was elected, was legally warned; — that the selectmen, at said meeting, received and counted the votes; — that they declared the said Ellis duly chosen; — that they made a certificate thereof to the house; — and, that, on the whole, notwithstanding some irregularities in the proceedings of the meeting, the choice was legal. The report was agreed to.4
23 J. H. 93.
Same, 101.
Same, 213.
Same, 247.