Gilchrist, C. J.
There are numerous authorities tending to show in what cases a writ of mandamus is the appropriate remedy. In the case of the Commonwealth v. Athearn, 3 Mass. Rep. 285, it is intimated by Parsons, C. J., that the proper mode is for the successor of a town clerk to take the oath of office, and to demand of the former clerk the records, and if they are refused, then to move for a mandamus to command him to deliver over the records. It was alleged, in that case, that the defendant was in possession of the office, but was not so legally. In the First Parish in Sudbury v. Stearns, 21 Pick. 148, trover was brought against the defendant for the book of records of the parish. His defence was that he was the clerk, and as such had a right to the possession of the records. Morton, J, says: “ A mandamus would doubtless be a more appropriate and effectual remedy to compel the delivery of the records to the legal officer,” and he cites the case of the Commonwealth v. Athearn. The rights of persons acting colore officii can be tried only in an information in the nature of a quo warranto, or on a writ of mandamus. Ibid. 156.
In Rex v. Wildman, 2 Strange 879, the reporter says: “ A mandamus was granted to Wildman on my motion, requiring him to deliver the Company of Blacksmiths all books, papers, &e., which he had in his custody, by virtue of being their clerk, from which office he had been removed.” In the King v. Ingram, 1 W. Bl. 50, there was a motion for a mandamus to deliver up books and papers belonging to the borough of Droitwich. Bathurst showed for cause that Ingram was executor of Mr. Winnington, who had laid out several sums for the borough, and had never been repaid, and that he kept these books as a security for such repayment ; but the court said that, as he confessed to having public books in his custody, a mandamus must go, and if he had [221]*221any just cause for keeping them, he might set it out in the return, and a mandamus was granted.
A mandamus suggested that the defendant was surveyor of highways for a time named, and now expired, and that divers books of accounts, &c., relating to the highways during his time of office, were now in his possession, and ought to be delivered to the church wardens, and that he had often been requested so to deliver them, and had refused, and a mandamus commanded him to deliver to the church wardens all books, &c., in his possession, or show cause to the contrary. The King v. Round, 4 Ad. & Ellis 139. So a mandamus may issue on the petitioner proving himself to be town clerk, to his predecessor, commanding him to deliver to the petitioner the books of records, &c., belonging to the office. Taylor v. Henry, 2 Pick. 397.
A mandamus issued to the defendant, commanding him to deliver to the plaintiff the common seal, &c., of Harwich, which the plaintiff claimed to belong to his custody, as having been duly elected town clerk of that corporation. Crawford v. Powell, 2 Burrow 1013. A mandamus was granted to oblige the old overseer of the poor to deliver over the books of the poor rates to the new overseer, for, per curiam, they are public books, and ought to be delivered over by one overseer to another, that the parishioners may have access to them, and the overseer and church wardens for the time being ought to have the custody thereof. Rex v. Clapham, 1 Wils. 305; 3 Bl. Com. 310. In the case of Shipley v. The Mechanics Bank, 10 Johns. 484, a mandamus was refused to the defendants, commanding them to permit certain shares fo be transferred, on the ground that they had an adequate remedy by an action on the case, to recover the value of the shares. It is said by the court, “ it is not a matter of public concern, as in the case of public records and documents.” In the case of The People v. Throop, 12 Wend. 188, the doctrine laid down is that where a rule to show cause has performed the office of an alternative writ, [222]*222there is no impropriety in granting a peremptory mandamus in the first instance. The same matter has now been presented to the court, by affidavit, which would have come in the shape of a return to an alternative mandamus. A delay might render the whole proceeding nugatory as to the relater.
Upon these authorities, and there are numerous others to the same effect, the judgment of the court is that a mandamus is the proper remedy in this case.
But the case raises several other questions of considerable importance.
The Rev. St., ch. 33, § 4, provide as follows:
“ When any vote declared by the moderator shall immediately, and before any other business is commenced, be questioned by seven or more of the voters present, the moderator shall make the vote certain by a poll of the house.”
It has been a matter of inquiry by us whether, after having taken one poll of the house, the result thus attained was not conclusive, so as to preclude another poll of the house to make the vote certain upon the first polling. That question it is unnecessary to decide at present. The first poll of the house was not taken upon “ any vote declared by the moderator,” but it was taken because he could not arrive at any certain result by counting the hands. Upon the question of adjournment, the first vote declared was the vote ascertained by the first poll. Now the moderator might as well have taken the vote by tellers in the first instance as by a show of hands. There is nothing in the statute to prevent it, and the third section of ch. 33 provides that he “may prescribe rules of proceeding.” He could not determine how the vote was, by counting the hands, and therefore the house was polled, upon his statement of the difficulty. The statute, by its express terms, applies only to cases where a vote “ declared by the moderator” shall be questioned. The only vote declared by the moderator was that upon the first poll of the house, where [223]*223there were eighty-one votes for, and eighty-four votes against the adjournment. The first poll was the first vote taken, and that undoubtedly might be made certain by a second poll, which was the first attempt to make certain a previous vote. But whether, after a vote has been declared by the moderator, and a poll taken to make it certain, another poll may be had to make the first poll certain, is a question that need not be settled here.
But it is objected by the defendants, that the vote upon the first poll was not questioned immediately, and before any other business was commenced. Upon the evidence in relation to this point, the inquiry is, whether any other business had been commenced when the second poll was begun.
The evidence on the part of the respondents tends to prove that when the result of the first poll was declared by the moderator, a motion was made and seconded, to proceed to a third ballot for town representative. The moderator said that this motion was in order, and directed the people to bring in their ballots. He took the ballot-box, placed it in a convenient situation to receive the votes, took the checklist, opened it, and appeared ready to call the names of the voters, some of whom, with votes in their hands, were gathered round the desk, ready to vote when their names should be called. Then the vote declared by the moderator upon the first poll was questioned by John T. Blake and others.
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Gilchrist, C. J.
There are numerous authorities tending to show in what cases a writ of mandamus is the appropriate remedy. In the case of the Commonwealth v. Athearn, 3 Mass. Rep. 285, it is intimated by Parsons, C. J., that the proper mode is for the successor of a town clerk to take the oath of office, and to demand of the former clerk the records, and if they are refused, then to move for a mandamus to command him to deliver over the records. It was alleged, in that case, that the defendant was in possession of the office, but was not so legally. In the First Parish in Sudbury v. Stearns, 21 Pick. 148, trover was brought against the defendant for the book of records of the parish. His defence was that he was the clerk, and as such had a right to the possession of the records. Morton, J, says: “ A mandamus would doubtless be a more appropriate and effectual remedy to compel the delivery of the records to the legal officer,” and he cites the case of the Commonwealth v. Athearn. The rights of persons acting colore officii can be tried only in an information in the nature of a quo warranto, or on a writ of mandamus. Ibid. 156.
In Rex v. Wildman, 2 Strange 879, the reporter says: “ A mandamus was granted to Wildman on my motion, requiring him to deliver the Company of Blacksmiths all books, papers, &e., which he had in his custody, by virtue of being their clerk, from which office he had been removed.” In the King v. Ingram, 1 W. Bl. 50, there was a motion for a mandamus to deliver up books and papers belonging to the borough of Droitwich. Bathurst showed for cause that Ingram was executor of Mr. Winnington, who had laid out several sums for the borough, and had never been repaid, and that he kept these books as a security for such repayment ; but the court said that, as he confessed to having public books in his custody, a mandamus must go, and if he had [221]*221any just cause for keeping them, he might set it out in the return, and a mandamus was granted.
A mandamus suggested that the defendant was surveyor of highways for a time named, and now expired, and that divers books of accounts, &c., relating to the highways during his time of office, were now in his possession, and ought to be delivered to the church wardens, and that he had often been requested so to deliver them, and had refused, and a mandamus commanded him to deliver to the church wardens all books, &c., in his possession, or show cause to the contrary. The King v. Round, 4 Ad. & Ellis 139. So a mandamus may issue on the petitioner proving himself to be town clerk, to his predecessor, commanding him to deliver to the petitioner the books of records, &c., belonging to the office. Taylor v. Henry, 2 Pick. 397.
A mandamus issued to the defendant, commanding him to deliver to the plaintiff the common seal, &c., of Harwich, which the plaintiff claimed to belong to his custody, as having been duly elected town clerk of that corporation. Crawford v. Powell, 2 Burrow 1013. A mandamus was granted to oblige the old overseer of the poor to deliver over the books of the poor rates to the new overseer, for, per curiam, they are public books, and ought to be delivered over by one overseer to another, that the parishioners may have access to them, and the overseer and church wardens for the time being ought to have the custody thereof. Rex v. Clapham, 1 Wils. 305; 3 Bl. Com. 310. In the case of Shipley v. The Mechanics Bank, 10 Johns. 484, a mandamus was refused to the defendants, commanding them to permit certain shares fo be transferred, on the ground that they had an adequate remedy by an action on the case, to recover the value of the shares. It is said by the court, “ it is not a matter of public concern, as in the case of public records and documents.” In the case of The People v. Throop, 12 Wend. 188, the doctrine laid down is that where a rule to show cause has performed the office of an alternative writ, [222]*222there is no impropriety in granting a peremptory mandamus in the first instance. The same matter has now been presented to the court, by affidavit, which would have come in the shape of a return to an alternative mandamus. A delay might render the whole proceeding nugatory as to the relater.
Upon these authorities, and there are numerous others to the same effect, the judgment of the court is that a mandamus is the proper remedy in this case.
But the case raises several other questions of considerable importance.
The Rev. St., ch. 33, § 4, provide as follows:
“ When any vote declared by the moderator shall immediately, and before any other business is commenced, be questioned by seven or more of the voters present, the moderator shall make the vote certain by a poll of the house.”
It has been a matter of inquiry by us whether, after having taken one poll of the house, the result thus attained was not conclusive, so as to preclude another poll of the house to make the vote certain upon the first polling. That question it is unnecessary to decide at present. The first poll of the house was not taken upon “ any vote declared by the moderator,” but it was taken because he could not arrive at any certain result by counting the hands. Upon the question of adjournment, the first vote declared was the vote ascertained by the first poll. Now the moderator might as well have taken the vote by tellers in the first instance as by a show of hands. There is nothing in the statute to prevent it, and the third section of ch. 33 provides that he “may prescribe rules of proceeding.” He could not determine how the vote was, by counting the hands, and therefore the house was polled, upon his statement of the difficulty. The statute, by its express terms, applies only to cases where a vote “ declared by the moderator” shall be questioned. The only vote declared by the moderator was that upon the first poll of the house, where [223]*223there were eighty-one votes for, and eighty-four votes against the adjournment. The first poll was the first vote taken, and that undoubtedly might be made certain by a second poll, which was the first attempt to make certain a previous vote. But whether, after a vote has been declared by the moderator, and a poll taken to make it certain, another poll may be had to make the first poll certain, is a question that need not be settled here.
But it is objected by the defendants, that the vote upon the first poll was not questioned immediately, and before any other business was commenced. Upon the evidence in relation to this point, the inquiry is, whether any other business had been commenced when the second poll was begun.
The evidence on the part of the respondents tends to prove that when the result of the first poll was declared by the moderator, a motion was made and seconded, to proceed to a third ballot for town representative. The moderator said that this motion was in order, and directed the people to bring in their ballots. He took the ballot-box, placed it in a convenient situation to receive the votes, took the checklist, opened it, and appeared ready to call the names of the voters, some of whom, with votes in their hands, were gathered round the desk, ready to vote when their names should be called. Then the vote declared by the moderator upon the first poll was questioned by John T. Blake and others. Three of the respondents’ witnesses, the only persons in the case who speak upon this point, state that the moderator had not called any names from the checklist, when the vote upon the first poll was questioned. Another witness said the moderator was about commencing to call it, when the objection was made.
This is as far as the respondents’ evidence goes, and taking it to be all true, what does it prove 1
After the declaration of a vote according to the first poll, the “business” next to be “commenced” was the [224]*224third balloting for a town representative. It was moved and seconded that the meeting should proceed to this business. The moderator declared the motion to be in order, and calléd on the people to bring in their ballots. It does not appear that the question on this motion was put by the moderator. Now it is evident that no other business was commenced. There had been only a proposition to commence it, and the moderator called on the people to do so. But the business before the meeting was the balloting, and thq balloting was not commenced. No ballot had been cast, and no names had been called. The evil wffiich the statute intended to avoid did not exist. The object of the statute was to prevent the confusion which would follow, if, after the meeting was employed in any business, that should be dropped, and some former vote taken up and enquired into. But here no business had been commenced, for there was no balloting to be broken off by examining the former vote.
If the accounts of this transaction given by the witnesses for the respondents be all correct, still, as they do not establish the fact that any other business was commenced, the vote declared by the moderator upon the first poll, which was the first vote declared, must be considered as questioned in sufficient season.
Whether, on the first poll, any persons voted without right, it is not material to determine. It is the second poll that settles the question, and upon that the meeting was either adjourned or not adjourned. But the weight of evidence is that there was no illegal voting.
As to Titeomb’s vote, the tellers were all agreed as to' his vote at the time. This raises a presumption that his vote was properly included among those who voted for the adjournment, because they agreed upon a matter which they understood better then, while the matter was recent, than at any subsequent time. He was seen to pass out at the west •door, by some persons, and others who were present did not .see him. Costeris paribus, the oath of one who says he saw [225]*225a thing done, is more reliable than the oath of another who was present and did not see it. It does not follow that it did not happen, because he did not see it; and this is particularly true, when we consider the confusion and want of order and inability to understand what is done, which usually prevail in town meetings.
But it is agreed by. all the tellers that Titcomb’s vote was counted. The respondents deny that he intended to have his vote counted for the adjournment. Titcomb himself, and two other witnesses, say that he did not assent to be counted. Three witnesses on the other side say that he did thus assent. Here are three witnesses on each side. Tit-comb’s evidence on this point is no better than that of any other eye or ear-witness. We must judge of his assent by the external indications he gave of it, and we do not feel authorized to say that the evidence is sufficient to prove that Titcomb’s vote was improperly counted in favor of the adjournment. The meeting was, upon the face of the proceedings, formally and properly adjourned. The report of all the four tellers was prima facie correct. The presumption is that the report was right. This presumption must be overcome by evidence, and the evidence is not sufficiently strong for that purpose.
The judgment of the court is that the meeting was properly adjourned, that the petitioners were legally elected selectmen for the year 1848, and that they are entitled to a
Peremptory mandamus.