
    Francis Davis versus William Mason.
    Where the original proprietors of common land, after having laid out a parcel t© Co W., voted that the location should be void9 and C. W. or his heirs acquiesced in the avoidance, having never entered, and the proprietors afterwards laid out the same parcel to the plaintiff, it was kelds that a stranger could not contest the title of the plaintiff on the ground that it was not competent to the proprietors to annul their location to C. W.
    A paper in the handwriting of a deceased heir of C» W., who was agent of the other lieirs, found among the papers of such heir and purporting to be a copy of a letter from him to the proprietors, is not admissible as evidence of such acquiescence, without previous proof that an original was sent to, or received by the proprietary,, Semble,
    It was keld9 that extracts from the records of the proprietors were not improperly read by one party to the jury, the records themselves being in court and open to the use of the adverse party.
    The opinion of a practical surveyor was admitted as evidence, on a question whether certain piles of stones and marks on trees were monuments of boundaries.
    Where in trespass the defendant pleads soil and freehold in himself, without any other plea, and issue is joined thereon, the right of opening and closing the argu> ment before the jury belongs to the defendant.
    Tee spas s quare clausum fregit. Plea, soil and freehold in the defendant. Replication, that the soil and freehold are not in the defendant, and issue joined. Trial was had before Putnam J.
    Upon the foregoing pleadings the defendant claimed a right ic open and close the trial of the cause before the jury, but ¿his claim was overruled, and the cause was opened and closed by the plaintiff.
    The plaintiff derived his title to the close from John Child.
    To prove the title of Child, he produced the records of the original proprietors of common land in Holden, where the close is situated, by which it appeared that the land in question was laid out to Child on the 21st of September, 1784, by the original proprietors. It further appeared from those records, that the same land had been before, either in 1752 or in 1764, laid out to Cornelius Waldo, and that in 1771 the proprietors, for the reasons stated in the records, voted that the location to Waldo should be void, and that his heirs should take a new survey. It did not appear that Waldo or his heirs had ever entered into or claimed the land in question. The defendant contended, that it was not in the power of the original proprietors thus to vacate their own grant, and that as it did not appear, nor was alleged, that Waldo ever reconveyed the land to them, they had no interest or estate in it which they could lawfully convey in 1784 to Child. But the judge permitted the plaintiff to show that Waldo or his heirs acquiesced in this act of the proprietors vacating their own grant. The plaintiff then proved by the records above mentioned, that in November 1784, land ol equal extent with that which had been taken from Waldo, was laid out. by the proprietors to Waldo’s heirs. He further proved, that the land last laid out was in fact taken possession of by those heirs, and sold by them for their own benefit. He also produced a paper purporting to be an abstract from the proprietors’ records, and a copy of a letter from one of the heirs of Waldo, and who was agent for the rest of them, which was read to the jury. This paper was proved to have been found among the papers of such agent, and was in his handwriting. All this was objected to by the defendant, but the judge permitted the evidence and the paper to be introduced on the trial; and he instructed the jury, that if they were satisfied that Waldo or his heirs acquiesced as above stated, it was competent for the proprietors to make the grant to Child, although the land had been before laid out to Waldo, and although there was no proof that either Waldo or his heirs had made any actual conveyance thereof to the proprietors.
    On the trial, it became important to ascertain whether certain heaps of stones were put up, and certain trees were anciently marked, for the purpose of making them monuments of boundaries. The plaintiff called Silas Holman, an experienced and skilful surveyor, who testified as to the appearance of the stones and trees. His opinion was then asked, whether the trees and stones were or were not boundaries. This was objected to by the defendant, on the ground that the witness ought to be confined to the statement of facts, leaving the jury to judge therefrom, whether the trees and stones were or were not boundaries ; but the judge ruled, that the opinion of the witness was competent testimony, and it was accordingly introduced.
    
      Oct. 5th.
    
    
      Aprir term 1827.
    A verdict was returned for the plaintiff.
    Merrick, for the defendant,
    now moved that the action should be dismissed, on the ground that an appeal did not lie to this Court, the action having been brought originally before a justice of the peace, and the ad damnum being of course less than 100 dollars. St. 1820, c. 79, §.4. He also insisted on the objections made at the trial.
    
      J. Davis and Allen argued for the plaintiff.
    To show that nothing passed by the first location to Waldo, there being no act of acceptance on his part, they cited Hatch v. Hatch, 9 Mass. R. 307; Maynard v. Maynard, 10 Mass. R. 456;
      Harrison v. Phillips Academy, 12 Mass. R. 456.
    
      
       But see 10 Mass. R. (Rand’s ed.) 458, n. (a) ; Garnous v. Knight, 5 Barn. & Cressw. 671.
    
   Parker C. J.

delivered the opinion of the Court. Since hearing the argument in this case, we have decided in a case at Cambridge, that by St. 1820, c. 79, the legislature intended by the terms real action to comprehend the action of quare clausum fregit, so far as regards the right of appeal. The reasons for this decision will appear in the report of that case. *

The tide of the plaintiff was prima facie sufficiently proved by the records of the proprietors, showing a location of the locus in quo to John Child, under whom the plaintiff claims. A location by the proprietors imports a possession, the lot being laid out by a survey to the person to whom the location is made.

The objection that extracts only of the records were used in evidence, is sufficiently answered by the fact admitted, that the proprietors’ records were in the court room and at the disposal of the defendant during the trial.

The testimony of Holman was rightly admitted. He, be zng a practical surveyor, with long experience, would have acquired a skill in determining whether marks on trees or piles of stones were intended as monuments of boundaries which makes his opinion proper evidence.

It is immaterial whether the previous location to Waldo was rescinded rightfully or not, as respects the question be-. tween these parties. Waldo’s heirs might contend, but the defendant, setting up no title, is not authorized to question the title of the plaintiff on this ground.

We dpubt whether the copy of the letter produced in the case was properly admitted, for it was found, it seems, among the papers of the heir who acted as agent, and there was no evidence that any original was ever sent to, or received by the proprietors ; but for this cause alone a new trial would not be granted, as we think the records sufficiently show a substitution, by the consent of the heirs of Waldo, for the lot originally located to their ancestor.

But the Court are all clear, the judge who tried the cause, concurring, that on the plea of soil and freehold tendered by the defendant, on which issue was joined and on which the trial was had, there being no other plea or issue, the right of opening and closing the argument belonged to the defendant.* * By such plea he admits the act complained of as a trespass, and undertakes to prove the property of the soil in himself. He has the affirmative, and if he fails to make it out, the verdict must be against him. Considering that this right of opening the cause and replying to the arguments of the plaintiff may be important, we feel ourselves obliged to grant a new trial; although from the view of the case which we have from the report, we think that the verdict is right. 
      
       See Blood v. Kemp, post, 168.
     
      
       See Peterborough v. Jaffrey, 6 N. Hamp. R. 464, and cases there cited;, Roscoe’s Dig. Crim. Ev. (Amer. ed.) 137, n. (1), and cases there collected.
     
      
       See Pearson v. Coles, 1 Moody & Rob. 206; 1 Stark Ev. (5th Amer. ed.) 367, 368; Sawyer v. Merrill, 6 Pick. 478; Weidman v. Kohr, 13 Serg. & Rawle, 17; 1 Chitty’s Pl. (6th Amer. ed.) 539.
     