
    1788-1789.
    HOPKINTON.
    Where two persons were returned by separate returns, from a town entitled to send one member only, each claiming the seat in opposition to the other, both were suspended from acting as members, until the election should be determined.
    At a meeting for the election of representatives, the votes were brought in with some confusion and disturbance; the right of several persons to vote being questioned, after they had voted, one of them qualified himself by taking the oath, others refused to qualify themselves or to withdraw their votes, and one offered to withdraw his vote, but refused to state for whom he voted ; and it was thereupon voted, that the whole matter should subside upon the last mentioned voter’s withdrawing his vote, which was done accordingly: it was held, that these irregularities were not sufficient to invalidate the election.
    A piece of paper, having the same name written upon it twice, constituting two ballots not separated, is, it seems, to be considered and counted as one ballot.
    When an election has been legally made, it cannot be superseded or invalidated by another election made at a subsequent meeting.
   The committee on the returns having reported, that there were two returns from the town of Hopkinton, one attested by three selectmen, by which it appeared, that Walter M'Farland was elected, and the other attested by two selectmen, by which it appeared, that Gilbert Dench was elected: it was ordered that Messrs. Mason, Washburn, Osgood, Choate, and Fotvler, be a committee to consider the said returns, together with a petition of certain inhabitants of Hopkinton, praying that Dench may he allowed to retain his seat, and that until the election of a member for the town of Hopkinton shall be determined, both the gentlemen returned be suspended from voting. The committee were enjoined to sit as soon as possible.

By the petition above mentioned, and other documents on file, the following appear to be the facts in this case:—

A meeting was duly warned and held in Hopkinton, for the choice of a representative, on the fifth day of May. The inhabitants, by a large majority, voted to send a representative, and the votes being called for, they were brought in, with some confusion and disturbance. The right of several persons to vote being questioned after they had voted, one of them qualified himself by taking the oath, others refused to qualify themselves, or to withdraw their votes, and one offered to withdraw his vote, but refused to tell for whom he voted. The moderator declared that the choice would not be constitutional, and desired the inhabitants to talle back their votes and bring them in again, which they refused to do. After some debate, it was moved, and unanimously voted, that the whole matter should subside, upon the last mentioned person’s withdrawing his vote. The vote was then withdrawn and torn up by the voter in the presence of the meeting. The poll being closed, and the votes sorted and counted, it appeared that M'Farland was elected by a majority of four votes over Dench, who was the only other candidate voted for. In counting the votes, there appeared to be one, which bore the same name written upon it twice, constituting two ballots not separated, which the selectmen declared, in the presence of the meeting, to be and counted as only one. Mr. MtFarland was then declared to be elected, the choice recorded by the town clerk, and certified by three of the selectmen, as abovementioned.

Several of the inhabitants, considering this election to be illegal, petitioned the selectmen to call a new meeting for the choice of a representative. The selectmen accordingly issued their warrant for that purpose, and at a second meeting held in pursuance thereof, on the sixteenth of May, Gilbert Dench was elected. This last election was certified by two of the selectmen, one of whom was the member returned, Mr. Dench.

The committee subsequently reported, that it was their unanimous opinion, that the election of M'Farland was legal, Snd that he was entitled to his seat, and that the election of Dench was illegal. The report, after being considered, was agreed to. 
      
       In England, when there is a double return, the rule is stated to be (May’s L. and P. of Parliament, 441,) that both members may claim to be sworn, and may take their seats ; but that after the election of a speaker, neither of them can vote until the light to the seat has been determined; because both are to be precluded from voting, where one only ought to vote; and neither of them has a better claim than the other. One of the orders, adopted at the commencement of every session in the house of commons, is, “ that all members, returned upon double returns, do withdraw till their returns are determined.”
     
      
       9 J. H. 13, 20.
     