
    WESTBOROUGH.
    The fact, that the check list is not used, is not sufficient to set aside an election, provided such neglect does not occasion the reception of an illegal, or the rejection of a legal, rote.
   The committee on elections, i.o whom this case was referred, reported thereon as follows : —

“ The petition of Martin Bullard and others, inhabitants of Westborough, against the right of Otis Brigham and Nahum Fisher to seats in this house, alleges two grounds on which it denies the right of those members to their seats.

The first is, that the check list was not used at the election, and that the votes were not checked oil'.

The second is, that the polls were not kept open daring the time required by law.

The member, who presented the petition, appeared before the committee, and, stating that no evidence would be offered in support of the second ground, insisted only on the first.

The sitting members fully admitted that no use whatever was made of the check list at the election.

As far as the committee could leam, there was no allegation or suspicion, that the cheek list was disused from improper motives, or that it had caused the reception of an illegal vote, or the rejection of any legal vote.

The law of last year, c. 42, § 5, provides, that no vote shall be received, ‘ until the name of the person offering the same shall have been found upon the list, and checked by the presiding officers, or by some one appointed by them therefor.’

The committee regard this provision as one which is calculated to prevent mischief, and as open to no objection; and the 6th section of the same law provides, that ‘ if any selectman, or other town or city officer, shali wilfully neglect or refuse to perform any of the duties required of him by the third chapter of the Revised Statutes, or by the provisions of this act, he shall forfeit a sum not exceeding two hundred dollars;’ But we regard this statute, mainly, as directory to the town officers. And we are of oninion, that however justly a neglect of these directions may be visited upon the town officers who may be guilty thereof, the town should not lose its right of representation thereby, if there were no fraud. Wherefore the committee report, that the petitioners aforesaid have leave to .withdraw their petition.”

This report was agreed to. 
      
       62 J. H. 36, 59, 71.
     