Avery v. Butters

Paríus J.

delivered the opinion of the Court, at June term, 1833.

By Stat. 1821, ch. 164, sac. 12, for organizing, governing and disciplining the militia it is provided, in relation to,clerks .of com» panies, that, before they enter upon the duties of their clerkship,, they shall be sworn to the faithful discharge of their duty, by taking an oath, the form of which is prescribed, before the captain or commanding officer of the company to which they respectively belong.

Having taken such oath, in the manner directed, they are duly qualified to discharge the duties devolving upon the office.

That the qualification may be the more readily proved, the law further provides, that the captain or commanding officer of the company, so administering the oath, shall, at the time of administering it, certify on the back of the warrant of the sergeant appointed to be elel'k, that he was duly.qualified by taking the oath required by law.

In this case the proper certificate of the captain appears regularly entered on the back of the warrant; but it is proved that subsequent to the commencement of this suit, a material word was added by interlineation, by the officei’ who administered the oath. If that amendment was properly made, the plaintiff’s authority as clerk was fully proved, and the judgment must be reversed. If the amendment was not authorized by lawj the judgment is correct.

We have repeatedly permitted officers to amend their returns or official certificates of their doings in cases where no new rights have been acquired, which .would be affected by such amendments. Such was the case of Howard v. Turner, referred to in Means v. Osgood, 7 Greenl. 148 $ where the magistrate, who administered the oath to appraisers, was allowed to add his official title to his signature, it not appearing in the original return that he was. a Justice of the Peace ; and this was done pending the suit in which the appraiser’s return and magistrate’s certificate were to be used as conclusive evidence. So in Buck v. Hardy, 6 Greenl. 162, an officer was permitted to amend his return of an extent, by inserting notice to the debtor and his absence from the county, after the execution was recorded and returned, and pending an action for the land. Such has-also been the practice in Massachusetts, both before and since the'separation. In Welles al. v. Battelle & al. 11 Mass. 477, the court held that where a town clerk has omitted to enter of record, that town officers were sworn into office, he might afterwards, being in the same office, make such entry, if consistent with the truth of the case, and that the record so amended,would be sufficient evidence of their being sworn. In that case also, the amendment was made pending the suit in which the record was to be used as important evidence. The same principle was recognized as correct in Thayer v. Stearns, 1 Pick. 109; Clapp v. Watson, 8 Pick. 449, was very similar to the case before us. The magistrate overruled the motion to amend the certificate on the back of the warrant by affixing the date . when the appointment was made and the oath administered; but the court resolved that .the captain should have been allowed to amend. The language of the statute of Massachusetts of 1809, ch. 108, sec. 8, providing for the qualification of clerks, is precisely similar to the 12th section of our statute of 1821, chap. 164, before referred to. The reason why an amendment was not allowed in Commonwealth v. Hall, 3 Pick. 262, was, that there was nothing to be amended. The defect was a want of certificate of appointment, and the court say the motion to amend could not be granted, for there was no certificate of appointment to be amended. In Sherman v. Needham, 4 Pick. 66, and Commonwealth v. Sherman, 5 Pick 239, there was no certificate and of course nothing which could be amended.

We think the amendment in the case at bar comes fully within the principles established in the several cases before cited. Here the officer, who administered the oath, was still in office when he made the amendment, and having executed a release, had no interest in the event of this suit. The oath itself, when administered, was extended in a correct form on the back of the warrant, and signed by the clerk. The captain certifies that the clerk personally appeared and subscribed the oath, but accidentally omits the word “took.” The whole, before the amendment, was in the most perfect form, with the exception of a single word, and there is no reason to doubt but that word was omitted by accident, and should be supplied, in order to render the certificate conformable to the truth of the case. We are of opinion that the official character of the clerk was fully proved