The opinion of the Court, (Wells, J. taking no part in the decision, having been of counsel in the case,) was delivered by
Howard, J.The plaintiffs have instituted this suit, as a “ fish committee,” under section 7, of the act of March 4, 1826, entitled “An act to regulate the alewive fishery in Bristol,” to recover a penalty of the defendant, for resisting them in the performance of their official duties.
It is incumbent on them to prove their official character, and establish their right to sue in that capacity, before they can recover a penalty for the alleged resistance.
To show that they were duly chosen as such committee, they introduced the record of the meeting of that town, March 3, 1845, including the record of the warrant, the return thereon, and the proceedings.
The defendant objected to the sufficiency of the evidence, and contended that the meeting was not legally notified, and *526that the supposed election- of the committee was not legally-made.
The return upon the warrant was, Bristol, March 3, 1845. By virtue of the within warrant, I have notified the inhabitants as within directed, by posting up copies of the same in three public places in said town, seven days before the meeting.
“ Elisha Hatch, Constable of Bristol."
It was not pretended that the town had appointed any different mode for calling their meetings from that provided by statute. The objections, principally relied on, were, that the constable did not state “ the manner of notice, and the time it was given,” in his return on the warrant; — or that the copies were attested, — or that they were posted in conspicuous places, as required by the Revised Statutes, (c. 5, § 6 and 7.) It is manifest that this return, as made by the constable, does not show that the meeting was legally notified. State v. Williams, 25 Maine, 561; Christ’s Church v. Woodward, 26 Maine, 172.
The statute of 1848, c. 37, $ 1, provides that, “in any action where the proceedings of any town meeting heretofore held are or may be in dispute, when it shall be made to appear by affidavit or otherwise, that the constable, or officer warning such meeting, had given the notice as contemplated in the fifth chapter of the Revised Statutes, but had omitted to make a full return thereof, as contemplated by the provisions of the said chapter, it shall be the duty of the Court to allow him to amend such return accordingly.” And the “ plaintiffs offered to prove, under and conformable to that statute, that the notices aforesaid were attested copies of said warrant, and that they were posted in public and conspicuous places in said town, seven days before said meeting, as contemplated in c. 5, of the Revised Statutes.”
The statute authorizes the Court to allow the officer to amend his return, when it should be made to appear that he had given legal notice, and had omitted to make a full return. He only, can amend ; the Court cannot order him, nor permit another, to amend the return. The officer must amend upon *527his own responsibility, and it must be made to appear to the Court that he can amend the defective return and that he is ready or willing to do it, before an amendment can be allowed or made. The offer, in this case, did not meet the objection. The plaintiffs did not propose an amendment by the constable; nor did it appear, nor was it pretended, that that officer could or would amend his return. The rejection of the offer was not therefore erroneous, for the proof would have been unavailing if it had been received.
Nonsuit confirmed.