The gravamen of the plaintiff’s complaint is the maliciously refusing to place his name on the list of voters. The effect of the charge to the jury was, that if the defendants did put the plaintiff’s name on the list, before the opening of the town meeting, the action could not be maintained. This instruction was correct. It negatived the material averment in the declaration, and proceeded on the ground, that until the close of the session for revising the “ list,” the selectmen had authority to alter it, and insert a name ; and that it was the plaintiff’s duty to ascertain, after the close- of the “ list,” that his name was not on it, before he could hold the defendants liable in this action. This, we think, was right. The effect of the finding under the instruction was, that the defendants did seasonably place the plaintiff’s name on the list; and, consequently, unless he offered his vote, he could not complain that it was refused.
There was a motion for a new trial, on the ground of newly discovered evidence, which was not sustained by the proof.
Exceptions overruled.