REPORT OF MAJORITY OF COMMITTEE.

IN ASSEMBLY, February 13th, 1851.

Mr. J. Benedict, in behalf of the majority of the committee on privileges and elections, to which was referred the petition of John Underwood for a seat in this House in the place of Samuel Jaynes, Jr., reported as follows, to wit:

REPORT OF THE MAJORITY OF THE COMMITTEE ON PRIVILEGES AND ELECTIONS, ON THE CLAIM OF MR. UNDERWOOD TO THE SEAT NOW OCCUPIED BY MR. JAYNE.

The majority of the committee on privileges and elections, to which was referred the petition of John Underwood, claiming that he is entitled to the seat now occupied by Samuel Jayne, of Yates county, beg leave to report the proceedings had before your committee in the premises :

That at a meeting of said committee Mr.. Underwood and Mr. Jayne attended, and that Mr. Underwood was instructed by said committee to make out and serve upon the committee and Mr. Jayne his allegation, which if substantiated by proof, would entitle him to the seat; and Mr. Jayne was also instructed by said committee to answer the same. That in pursuance of such instruction, Mr. Underwood made out and served, as directed, a paper, of which the following is a copy, to wit:

"TO SAMUEL JAYNE, Jr., Esq.:

"Sir. Please take notice, that I claim the seat in the Assembly which you now occupy, on the ground that there were about fiftyfive votes, called democratic votes, cast in the second district, in the town of Jerusalem, in said county of Yates, for myself for member of Assembly in said county, that were not counted or allowed for me, and which, if allowed, elects me as a member from said county instead of yourself.

Marked A.

Dated, January 23, 1851.

"Yours, etc.,

"JOHN UNDERWOOD."

That Mr. Jayne interposed the following answer, to wit:

"JOHN UNDERWOOD, Esq.:

"Take notice that the allegations set forth in the notice you have served on me, claiming my seat as inember of Assembly, is not true.

Marked B.

January 24, 1851.

SAMUEL JAYNE, JR."

That Mr. Underwood then presented to the committee, as evidence, the following paper, to wit :- "Of State New York, Yates county, ss. We the undersigned, of Jerusalem in said county, being duly sworn, doth each for himself depose and say, that on the fifth day of November, 1850, in election district No. two in the town of Jerusalem, he voted for John Underwood for member of Assembly; and further says not. (Then follows the name of Chester O. Arnold and one hundred and fifty-three others. The conclusion of the paper is as follows:) I certify that each of the above-named persons signed the affidavit, of which the above is a copy, and that I administered to each of them an oath in the usual form, to wit: That each of the above-named persons voted on the fifth day of November, 1850, in election district No. 2, in the town of Jerusalem, for John Underwood for member of Assembly.

"NORMAN T. KIDDER,

"A Justice of the Peace in and for said county."

Paper marked No. 1. The introduction of the foregoing paper was objected to by Mr. Jayne, but received by the committee for future consideration.

Mr. Underwood then offered in evidence the certificate of Robert Buel a justice of the peace in and for said county of Yates, that he administered an oath to thirty-six persons, (naming them), who testified that on the fifth day of November, 1850, they voted in the second election district of the town of Jerusalem for John Underwood for member of Assembly. This paper was marked No. 2.

Mr. Underwood also produced in evidence seven separate affidavits, taken before different justices of the peace, of seven different persons having voted in that election district of the town for him for member. These affidavits were marked number 3.

Mr. Underwood then introduced the affidavit of Andrew B. Angus and Daniel A. Thomas, in relation to the canvass in said district of the town of Jerusalem. That Mr. Thomas, in his affidavit, testifies, that he was present at the canvass, saw the votes canvassed, and that Mr. Underwood, in that district, had forty-two majority over Mr. Jayne. This paper was marked number 4.

Your committee would here state, that according to the canvass made by the inspectors of said election district, Mr. Underwood had but one majority.

Mr. Underwood then introduced affidavits of Phineas Parker and

others, showing that he could not procure, at the town clerk's office of said town of Jerusalem, the poll list, kept in the second election district of the town of Jerusalem. This paper was marked number 5. Mr. Underwood also offered an affidavit of P. Parker, in relation to the vote of said town, which affidavit is marked number 6.

Mr. Underwood also introduced a poll list kept by one of the clerks of said election district, which is marked number 7.

Mr. Jayne then introduced his certificate of election, marked nunber 8. Also the certificate of inspectors of election, district number 2, in Jerusalem, marked number 9; and also the county canvassers, certificate of the county of Yates, marked number 10. All of which papers are herewith transmitted.

The committee beg leave to state, that they do not consider the evidence offered on the part of Mr. Underwood as conclusive as to his right to the seat in controversy. But believing that the case demands further investigation, and desirous of doing the parties justice in the matter, would respectfully recommend that a suitable person or persons of the committee be directed to proceed to Yates county and take such further evidence in the case as may be brought forward by the parties, as may be pertinent and proper to be received.

Dated, February 4th, 1851.

P. M. BISHOP.
JAMES ELY.
ABM. WELDEN.

Assembly Documents, 1851, vol. 1, No. 55. See Documents accompanying same, following the report, pages 4-30.

Ordered, That said report be printed.

REPORT OF MINORITY.

Mr. Morris, from the minority of the committee on privileges and elections, reported as follows, to wit:

REPORT OF A MINORITY OF THE COMMITTEE ON PRIVILEGES AND ELECTIONS, ON THE PETITION OF JOHN UNDERWOOD, CLAIMING A SEAT AS MEMBER OF ASSEMBLY FROM THE COUNTY OF YATES.

The undersigned, a minority of the committee on privileges and elections, to which was referred the petition of John Underwood, claiming a seat in the Assembly as member from Yates county, now held by Samuel Jayne, Jr., report, that the parties have personally attended before your committee. That the petition in substance alleges that the petitioner, John Underwood, received the greatest number of votes cast for member of Assembly at the last general election in the county of Yates, and that the inspectors in the second election district in the town of Jerusalem, made a mistake in the canvass of votes given in that district for member of Assembly. That the petitioner received about one hundred and ninety-nine votes, but only one hundred and seventy-nine votes were counted for him, and that Samuel Jayne, Jr., received one hundred and fifty-eight votes, but that one hundred and seventy-eight votes were counted for him. At the meeting of your committee held on the twenty-third day of January, 1850, it was suggested to both parties, and not being objected to by either of them, the committee directed that the petitioner should set forth in writing, a statement of the grounds on which he claimed to be entitled to the seat in question, and serve a copy thereof on the sitting member, who should answer the same also in writing, and serve a copy of his answer on the petitioner; and adjourned until the next day to give the parties an opportunity to comply with the direction of the committee.

At the next session of the committee, held on the twenty-fourth day of January, 1851, both parties again personally attended and the statement and answer required by the order of the committee were presented. On examining the statement of the petitioner, it appeared that he totally changed the ground on which he claimed his right to the seat in question, as set forth in his petition, and alleged in substance that about fifty-five democratic votes were given for him as member of Assembly, in election district, No. 2, town of Jerusalem, which were not counted or allowed for him by the inspectors. The sitting member explicitly denied the truth of this allegation. The committee adjourned to January 30, 1851, without taking any further action in the matter.

On the adjourned day, both parties personally attended before your committee; Mr. Thompson, one of the undersigned, being unavoidably absent.

The petitioner offered certain papers for the consideration of the coinmittee, marked respectively No. 1, No. 2, No. 3, No. 4, No. 5, No. 6 and No. 7, the introduction of which was objected to by Mr. Jayne. The committee overruled the objection, and the papers were admitted by Mr. Maurice, one of the undersigned, dissenting. The following is a correct description of these papers:

No. 1 is a paper without any date, and all in the same handwriting except the signature, "Almon S. Kidder, a justice of peace in and for said county," which is apparently in a different hand. The caption of this paper is in these words, viz.: "State of New York, Yates county, ss: We, the undersigned, of Jerusalem, in said county, being duly sworn, doth each for himself depose and say, that on the fifth day of November, 1850, in election district No. 2, in the town of Jerusalem, he voted for John Underwood, for member of Assembly, and further says not. [Then follows a long list of names, in all, one hundred and fifty-four, and the paper proceeds:) I certify that each of the above-named persons signed the affidavit of which the above is a copy, and that I administered to each of them an oath in the usual form, to wit, that each of the above-named persons voted on the fifth (5) day of November, 1850, in election district No. 2, in the town of Jerusalem, for John Underwood for member of Assembly. Signed, 'Almon S. Kidder, a justice of peace in and for said county."

No. 2 is a paper also without date, all written apparently by the same person and in these words: "State of New York, county of Yates, ss: I certify that I administered an oath in the usual form to each of the following named persons, to wit [here follows thirty-six names], and that each swore that he voted at the last general election held on the 5th day of November, 1850, in election district No. 2, in the town of Jerusalem, in said county, for John Underwood for member of Assembly. Robert Buel, justice of the peace in and for Yates county."

No. 3 consists of five separate papers pinned together. The first is an affidavit of Moses Shaw, an illiterate person unable to write his name, and who signs with a x, taken before J. Hewitt, a justice of the peace of Chemung county, on the 9th of January, 1851, who says, that at the last election he resided in district No. 2, in Jerusalem, and cast his ballot for John Underwood for member of Assembly from Yates county. There is no certificate by the justice that he read over or made known the contents of this affidavit to the person making it.

The second is an affidavit of Oliver Babcock, as written in the body of the affidavit, or Babcock as written in the signature, also an illiterate marksman, taken before Andrew De Groff, a justice of the peace for Steuben county, on 15th January, 1851, who says that he resided in the town of Jerusalem, Yates county, in district No. 2, and that at the last annual election held in said county for State and