Tub election of William King, returned a member from the town of Bath, was controverted by David Trufant and others, on the following grounds, stated in their petition1:—
1. That at the meeting for the choice of a representative, after the selectmen had received and counted the votes, they declared the whole number to be one hundred and fifty-one, seventy-six of which were necessary to a choice, and that William King had that number and was chosen, whereas there were seventy-five votes given in for Samuel Davis, and one for William Webb; and
2. That the selectmen, instead of sorting and counting the votes openly, in the presence of the meeting, as required by the statute of 1795, c. 55. s. 1., retired by themselves to sort and count the same.
The petition was accompanied by depositions, from which it appeared, that the right of one person, who voted in the election, was disputed, and who, upon a subsequent inspection of the tax list, was found not to be taxed for any property; that there was no list of voters produced at the meeting; and that the selectmen, after receiving the votes, retired into the pulpit of the meeting-house, in which the meeting was held, and there, together with the town clerk, privately sorted and counted them: but it did not appear that the votes were given in as stated in the first allegation in the remonstrance.
It appeared, on the other hand, fay the affidavits of the selectmen, that the votes were as declared by them at the rneet-*52ing, and by the affidavit of the town clerk, who counted the votes for Mr. King, that he had seventy-six. The selectmen further testified, that they neither saw nor knew of any votes for any other person or persons, than Samuel Davis and William King.
The committee on elections reported, that the election was void:1 but on the question, whether their report should be agreed to, it was determined in the negative.2
26 J. H. 21.
26 J. H. 40.
Same, 42.