The election of Charles Durfee, returned a member from the town of Troy, was controverted by Nathan Bowen and others, *57as illegal, and his seat claimed for Jonathan Brownell, who was alleged to have been duly elected a representative for the said town1 and it was ordered, that the two members, returned from Troy, be enjoined neither to vote nor debate, until the legality of their elections should be determined.2
From the memorial and depositions subsequently taken by both parties,3 the following appear to be the facts in the case ;
The town of Troy, until within a few years, had been a part of the town of Freetown, in which it was the custom to choose town officers on the first Monday of April; and the town of Troy, since its incorporation, had continued in the same practice, until the present year, when a number of their inhabitants petitioned the selectmen to call a meeting for the choice of town officers in the month of March, The selectmen thereupon issued a warrant for a town-meeting on the eighth of March, not for the purpose of choosing town officers, but to consider the expediency of changing the time of choosing them from April to March. A meeting was held accordingly, on the eighth of March, at which the disorder and confusion were so great, that, after two trials for the choice of moderator, it was found impracticable to organize the meeting, and nothing was done, except, that by a general consent, it was agreed, that the selectmen should call a meeting on the seventeenth of March, for the same purpose. The selectmen issued a warrant for a meeting at that time, and delivered the same to a constable for service. Several of the inhabitants who had signed the petition for the first meeting in March, then petitioned Charles Durfee, a justice of the peace, to issue his warrant, for a meeting of the inhabitants, to be held at the same time and place appointed in the warrant issued by the selectmen, alleging, as the ground of their request, that the selectmen had unreasonably refused to call a meeting on the eighth of March, agreeably to their petition. Durfee issued his warrant accordingly, and directed and delivered it to the same constable to whom the selectmen had delivered theirs. On the seventeenth of March, the selectmen attended, at the time and place *58appointed for their meeting, and demanded a return of the warrant issued by them, of the constable, who refused to return the same. Durfee also attended, and in pursuance of the warrant issued by him, which had been returned by the constable, proceeded to open and organize the meeting. A moderator having been chosen, the meeting then proceeded to the choice of officers. The selectmen, whose warrant had not been returned, then issued another warrant, for a meeting on the first of April, for the choice of town officers, and a méeting was held accordingly, at which those of the inhabi-tárits¿ who had previously acted under Durfee’s warrant, cooperated in the choice of moderator, but being disappointed in the result, they then withdrew. At this meeting, town officers were chosen. The selectmen, chosen at the meeting held in pursuance of Durfee’s warrant, called a meeting for the choice of a representative, at which meeting, Charles Durfee was elected. The selectmen, chosen at the meeting called by the old selectmen, on the first of April, also called a meeting for the choice of a representative, at which Jonathan Brownell was elected.
The committee on elections reported,1 that, having taken into consideration the petition aforesaid, and also the circumstance, that two members are returned from the town of Troy, claiming seats under certificates from two real or pretended sets of selectmen, they were of opinion that Charles Durfee was not duly elected, and ought not to have a seat, and that Jonathan Brownell was duly elected, and ought to take his seat accordingly. The report was agreed to.