Roberts v. Holmes

Foster, J.

This court has power to allow the amendment of town records, when they are offered in evidence, conformably to the truth ; and this power was properly exercised at the trial of this cause. Gibson v. Bailey, 9 N. H. 168; Pierce v. Richardson, 37 N. H. 306, 311.

The amendment being made, the record shows that the defendant was at the time of the alleged trespass an officer, deriving his authority, not from the vote of the town-meeting, which was, perhaps, illegally *561 organized, but from the appointment of selectmen. Doubtless a person against whom a suit is brought, who justifies as a public officer, must show that he is such an officer de jure. Brewster v. Hyde, 7 N. H. 207; Blake v. Sturtevant, 12 N. H. 567. This the defendant has done by proof of a regular appointment by the selectmen.

He need not go so far as to show that the selectmen were regularly chosen. The suit is not against them, and their official title cannot be questioned in a suit between third persons. Tucker v. Aiken, 7 N. H. 113; Baker v. Shephard, 24 N. H. 208; Pierce v. Richardson, before cited. Infinite obstruction of the public business would ensue, if a party, called upon to justify his official conduct, were to be required to go to the root of all derivative authority, and show that, even from the primary fountain and through all its thence flowing course, the stream of his power was pure and unobstructed. For example, it would be too inconvenient to be established as law, that the deputy of a sheriff, being required to justify his acts, must show that the “ high ” sheriff, from whom he derived his appointment, was himself appointed by an executive legally elected.

Judgment on the verdict.