Bishop v. Cone

3 N.H. 513 | Superior Court of New Hampshire | 1826

Richardson, C. j.

It is contended in this case, that, there was not evidence sufficient to shew, that, the defendants were duly chosen selectmen for the year 1822 ; because there was no evidence to shew7, that the persons who signed the warrant, under which the meeting, at which they were chosen, was held, were selectmen.

As the property of the plaintiff had been taken by a warrant under the hands of the defendants, it was clearly incumbent on them to shew themselves officers de jure, Moore vs. Graves, ante, p. 413. The question then is, was the evidence, on this point, proper to be submitted to a jury, as proof, that the defendants had been duly appointed selectmen ? On this question we entertain no doubt. The defendants produced a record of their appointment, at a meef*~ ing of the inhabitants, and shewed, that they had acted as selectmen under the appointment. From this evidence it was competent for the jury to infer, nothing appearing to the contrary, that the meeting, at which they were appointed, was legally holden, and that they had been duly sworn. Johnson vs. Wilson, 2 N. H. Rep. 202.—3 John. 431, Potter vs. Luther.—1 N. H. Rep. 266, Jones vs. Gibson.—1 Gallison 222.—1 Pick. 109.

We are therefore of opinion, that this objection cannot prevail.

It is further contended, that the amended record of the vote of the town to raise money was not admissible, because the record could not be legally amended. On this point we think that great care must be taken, that amendments be made only according to the fact ; but we have no doubt, that a record may be amended to conform to the truth. 11 Mass. Rep. 477, Wales vs. Battelle.—2 Pick. 397, Taylor vs. Henry.

It has been further urged in this case, that the defendants ought to have been held to shew the regularity of the surveyor’s proceedings. But there is no pretence for the supposition, that selectmen are responsible for the acts of surveyors of highways. There are cases, in which a surveyor of highways might be liable by reason of some defect in the proceedings of the selectmen. 4 Taunt 635, Mayor vs. Knowler.—13 John. 444, Suydam vs. Keys.—1 Caine’s Rep. 92, Henderson vs. Brown.—10 Mass. Rep. 119.

But no case has been cited, nor are we aware, that any case is to be found, in which it has been held, that assessors of taxes can be liable in trespass, or in any other form of action, for irregularity in the proceedings of collectors.

We are therefore of opinion, that there must be

Judgment on the verdict.