The court are of opinion that the voting list used at the election was an official document; that, in theory, it is in the custody of the town clerk, as the keeper of the records, documents, official files and papers of the town, and should be *435regarded as an important document, and ought to be certified or otherwise authenticated, and recorded, or filed and preserved, for the security, as well of the voters, as of the selectmen and other officers. Taking this view, we think the voting list is the primary and regular evidence that any one’s name is or is not on the list, and essential to the proof that a party has been admitted or rejected by the selectmen, as judges of the qualifications of electors. Then, according to the general rule on the subject, before using secondary evidence, notice to produce, or a subpoena duces tecum, must be issued, either to the town clerk, the selectmen for the time being, or the person who has the keeping of the muniments of title and other official papers. If the original document is produced and authenticated as the voting list, we think it is the conclusive evidence upon the question whether a person was admitted as a qualified voter at such meeting or not, and that paroi proof or other secondary evidence would not be admissible to control it. As the paroi evidence was admitted in the present case, without notice to produce the voting list, against the objection of the defendants, we think there must be a new trial.
But in reference to the facts of the present case, it seems proper to add, that if, when the meeting is opened and the voting commences, the name of a person stands on the list, as that of one qualified and entitled to vote, he has prima facie a right to vote, and has no occasion then to offer proof of his title; but the selectmen may still strike off his name and reject his vote, if they can prove that he was not entitled to vote, or if they are prepared to show that he has not paid a tax within two years, or any other decisive fact of the like kind. Humphrey v. Kingman, 5 Met. 168. If the party’s name is not on the list, he must sea • sonably apply to the selectmen and offer proof of his right, and require his name to be placed on the list; and proof of such proceeding is necessary to maintain his action. Blanchard v. Stearns, 5 Met. 298. Waite v. Woodward, 10 Cush. 143.
As to the form of declaring, we think that where the name of a person is" placed on the list, and so remains to the commencement of the meeting, and the selectmen then, on their *436responsibility, strike off the name of such person, and he brings an action against the selectmen on the ground of his vote being refused when he had a right to vote, the gravamen of the case will be the refusal to receive his vote, and not the refusal to place his name on the list.
New trial ordered.
■Upon the new trial at April term 1855, the plaintiff introduced evidence tending to show that the defendants erased his name from the list of voters at a meeting of the selectmen held just before the town meeting; that his name was on the lists of voters posted up in public places in the town before the election ; that he offered his vote at the election, but the defendants refused to receive it, his name not being then borne on that list.
The plaintiff did not, at the election, or at any other time, offer any evidence to the defendants, of his having the legal qualifications of a voter in the town; nor did he request that his name should be inserted on the list of voters; but he tendered his vote, which was refused.
Upon this evidence, the defendants contended that they could not be held liable for refusing to receive the plaintiff’s vote at said election, because, by law, the defendants had no right to receive the vote of any person whose name was not borne on the voters’ list at the election; and it appearing that the plaintiff’s name was erased from the list before the election took place, and before the meeting was opened, that this action could not be maintained; but the plaintiff’s remedy was by another action, charging the defendants with wrongfully erasing his name from the list. Bigelow, J. nonsuited the plaintiff; and the non-suit was confirmed at this term by the full court.