The report in this ease was as follows :—
“ The committee on elections report, that Eliab Leland and others, inhabitants of Upton, petition against the right of Elijah Warren and Nahum W. Holbrook to seats as members of this house, on the ground of the illegality of the proceedings at their election ; and particularly,
1. Because there was no article in the warrant for the meeting to elect representatives.
2. Because the, poll was not opened at the time and place appointed by the selectmen for the meeting.
The parties were heard before the committee at several sittings, and a great amount of evidence was introduced on both sides.
From this evidence it appeared, that the warrant contained the following article; and no other respecting the election of representatives:—
‘ And also to determine the number of representatives said town will choose to represent them at the general court, to be held at Boston, on the first Wednesday of January next.’
The meeting was called ‘ to meet at the public meetinghouse in said-town, at ten o’clock in the forenoon.’ The meeting was called to order in the meeting-house at eleven. Soon after, a motion prevailed to adjourn to Union Hall. This was a hall built and owned by individuals, about ten or twelve rods from the meeting-house. The town-meetings had been-always held in the meeting-house, until the half was.*404built, about one year ago. Since then the town-meetings had been held in Union Hall, and in all instances but one, by adjournment from the meeting-house. The reason for these adjournments was not very clear, but there was some indistinct evidence tending to show, that the objection to the use of the meeting-house arose from the injury caused by the town-meetings, and also some difficulty about wanning it. It was proved that Union Hall was perfectly convenient for town-meetings.
At Union Hall, the polls were opened for governor, lieutenant-governor, and senators. A motion was made not to send representatives. The house was divided, and counted by the constable and one of the selectmen. The constable returned 86 for and 85 against the motion ; the selectman returned 83 for and 85 against. The chairman, uncertain what to do, delayed declaring the vote for some time, while the votes for governor were being given in; but finally declared the motion carried. The voting for governor went on, and between half-past three and four P. M. a motion prevailed to continue the poll open half an hour longer. Before the half hour expired, a motion ‘ to adjourn to ten o’clock the next day, for the purpose of reconsidering the vote not to send representatives,’ was made, and put, and carried. Some witnesses stated, that they heard the motion only as a motion to adjourn to the next day; but that they learnt the purpose of the adjournment immediately, by inquiry of those who stood near them.
The meeting being opened the next morning, the chairman asked if there were any objections to the meeting, as he wished them stated and considered then, if any there were. But no objections were made. The poll was opened, the votes were received, and the sitting members had a majority of the whole number of ballots cast. The vote was the largest ever known in the town. There was no evidence, and indeed no allegation, of any fraudulent intent or unfair practices, on either side.
The committee are not satisfied, that these circumstances constitute a .sufficient reason for declaring the seats of the sit*405ting members vacant. And they therefore report, that the petitioners have leave to 'withdraw their petition.”
The above report was agreed to.1
62 J. H 91, 111.