Mott v. Reynolds

27 Vt. 206 | Vt. | 1855

The opinion of the court was delivered by

Redfield, Ch. J.

As the oral evidence admitted and submitted to the jury did not produce any effect in setting aside the record of the district clerk, it is not important to consider the propriety of its admission. It is indeed very obvious upon general principles that matters of record cannot be supplied or contradicted by merely oral evidence. And although the judge, in trying a case in the county court, is not bound to express any opinion in regard to an amendment of a record, by any recording officer; yet he is not precluded either by law, or taste, from expressing his own opinion upon such a matter, if he choose, nor do we perceive any impropriety in his so doing, if he choose, and it is sufficiently understood, that it is merely the unofficial opinion of the person, as, it is very obvious, must have been the case here.

The only question remaining here then is, as to the affect of the amendment. And while it is obvious some limits must be fixed to such amendments, we do not feel prepared to say as matter of law, that they are never allowable. If the officer making the record were out of office, or were a party to the suit, as in Hadley v. Chamberlin, 11 Vt. 618, and in many other cases, it might be improper. But the point does not seem to have been definitely determined in Hadley v. Chamberlin, for the case is finally put upon the ground that the record as amended showed no authority to act as collector, there being no such officer known to the law as a collectoryw tempore.

But we think in general, it must be regarded as the right of the clerk of a town or other municipal corporation, while having the custody of the records, to make any record according to the facts. And we do not perceive that his having been out of office, and restored again, cou£d deprive him of that right. But even the officer could not alter or amend a record upon the testimony of third persons ordinarily, and ought not to do it upon his own recollection, unless in very obvious cases of omission or error, of which the present might fairly be regarded as one, probably. Such amendments should ordinarily be made by the original documents or minutes.

We do not see why this amendment was not properly made and the judgment is affirmed.