The election of Peletiah Fisher, returned a member from the town of Franklin, was controverted by Samuel Metcalf and others. The facts in the case appear from the following statement reported by the committee on elections : — ■
“ That the town-meeting in that town, for the choice of a representative for the present year, had been legally and regularly warned, and was holden on the sixth clay of May last.
That in addition to the warning for choosing a representative, a number of articles, relating to town affairs, were inserted in the same warrant; that it had been an invariable usage in that town, since its first incorporation, so to do; and that in this instance, there was one inserted among those relating to town affairs, for giving instructions to their representatives.
That the hour appointed in the warrant, for choosing a representative, was eleven of the clock in the forenoon.
'That for the purpose of considering and acting upon the other articles contained in the warrant, the people were, agreeably thereto, notified to convene, and actually did convene, at nine of the dock in the forenoon of the same day.
*53That being so convened, they attended to the first article contained in the warrant, which was to choose a moderator, and having done this, they proceeded to consider some of the other articles relating to town affairs.
That when the hour of eleven had arrived, without any formality of adjourning or postponing the town business, the moderator retired, and the selectmen took his place and presided, and having read over a list of voters for representative, called for the votes to be brought in; upon which a motion was made not to choose one, and the question being taken passed in the affirmative, 72 to 67; after which it was observed, that ‘they had nothing further to do.’ Then the selectmen, with as little formality, as the moderator had done before, left their seats, and he resumed his station. The meeting was then adjourned for an hour. When the hour had elapsed and the people had reassembled, they proceeded to act on those articles contained in the warrant, which had not been acted upon before.
That in the midst of this business, a motion was made to reconsider the vote, that had been passed in the forenoon, not to choose a representative, and then to choose one. Upon which the moderator instantly quitting his station, the selectmen again presided, and the question being taken, passed in the affirmative, 82 appearing in favor of it. A vote was then passed to postpone the choice to the Thursday of the then next week. After this the moderator again took his stand, and there being no article remaining not acted upon, among those relating to town affairs, excepting the one to give instructions to the representative, the meeting was adjourned to that time. At which time, being the 16th day of May, and within the time provided by the constitution, the people again assembled, and having voted to adjourn the consideration of the only remaining article, contained in the warrant, among those relating to town affairs, which was to give instructions to their representative, for the space of one hour, the moderator left his place, and the selectmen presided and called the attention of the voters to the article for choosing a representative. *54A motion was then made to reconsider the last vote, passed on that subject, and adhere to the first, which was decided by dividing the house, 62 being in favor of it, and 92 against it. The selectmen then called for the votes for a representative, which, after several trials, being sorted and counted, produced the final result, as appears by the record herewith exhibited, that 67 votes making a choice, Peletiah Fisher, Esq., having 83, was declared to be chosen. After which, the moderator again took his stand, and the remaining article in the warrant was acted upon, which was to give their representative such instructions as the town should think proper.
That when the vote passed, not to send a representative, there were 139 voters present, who acted on that question. At the meeting when the choice was finally made, the vote being again put, whether they would send a representative, or not, there were 154 voters present, who acted on the question.
That two or three legal voters for a representative absented themselves from the last meeting, who were present at the first, not because they were ignorant of the time to which the meeting stood adjourned, but because, as they said, it was their opinion that the proceedings were illegal.”
On these facts, the committee gave no opinion, but submitted the question, whether the election of Peletiah Fisher was valid or not. There is no entry on the journal of any further proceedings; but a memorandum, on the back of the report, states, that the subject was referred from the May to the January session, and a time assigned for its consideration. Mr. Fisher retained his seat.