therefor. It might be otherwise, the court concede, if the common council acted as commissioners of apportionment in making the assessment upon the property that was to bear the burden, or on the confirmation of a report in which the interest of these aldermen was directly involved.'

1 Steckert v. East Saginaw, 22 Mich. 104, 1870, where the reasons for the distinctions taken are clearly stated by Cooley, J.

Right of corporation to contract with its officers or councilmen. Ante, soc. 221, note 3, and cases cited. Post, sec. 371, note.

CHAPTER XI.

CORPORATE RECORDS AND DOCUMENTS.

§ 231. Corporations have the incidental power, if the regular clerk is temporarily absent, to appoint a private person a clerk pro tem. for the purpose of making the entries of what is transacted at the corporate meeting. His entries, made by the direction of the corporate authorities, or entries made by the regular clerk from memoranda furnished by the clerk pro tem., are competent evidence of the proceedings of the meeting.'

§ 232. The clerk or officer of a New England town' who has made an erroneous record, may, while in office (but not afterwards), or after a re-election to the same office, amend the same according to the truth, being liable, like a sheriff who amends his return, for any abuse of the right, as where he makes a fraudulent or untruthful amendment. the town is not concluded or bound by an erroneous record, whether made by design or accident, unless when it would, on general principles, be estopped.'

'Hutchinson v. Pratt, 11 Vt. 402, 1839. See also Rex v. Mothersell, 1 Stra. 93, also referred to infra. Sufficiency of memoranda: Louisville v. McKegney, 8 Bush (Ky.) 651, 1870. Faiure of clerk to take oath of office does not invalidate his record. Stebbins v. Merrit, 10 Cush. 27. Ante, sec. 153. Signature of chairman to minutes affixed at a day subsequent to the meeting, held sufficient, under a statute requiring the minutes of corporate meetings to be signed by the chairman. Miles v. Bough, 3 Gale & D. 119; Inglis v. Railway Company, 16 Eng. Law and Eq. 55. See, also, chapters relating to Corporate Meetings and Corporate Officers.

Post, sec.

3 Cass v. Bellows, 11 Fost (N. H.) 501, 1855; Harris v. School District, 8 Fost. 58, 66, 1853; Gibson v. Bailey, 9 N. H. 168; Whittier v. Varney, 10 N. H 291; Wells v. Battelle, 11 Mass. 477; Low v. Pettingill, 12 N. H. 340; Pierce v. Richardson, 37 N. H. 306; Scammon v. Scammon, 8 Fost. 429; President, &c. v. O'Malley, 18 Ill. 407, 1857; Mott v. Reynolds, 27 Vt. (1 Wms.) 206, 1855; Boston Turnpike Co. v. Pomfret, 20 Conn. 590, 1850; com

§ 233. In a case in Vernont, the clerk of the town, pending a trial, amended the record by adding his signature as clerk to the record of the warning for the meet

pare Covington v. Ludlow, 1 Met. (Ky.) 295, below cited. The necessity and reasonableness of the doctrine, stated in the text, are thus expounded by Parker, C. J., in Wells v. Battelle, 11 Mass. 477, 481, 1814: "We have had frequent occasion to perceive the great irregularity which prevails in the records of our towns and other municipal corporations; and the courts have always been desirous to uphold these proceedings, where no fraud or willful error was discoverable. Too much strictness on subjects of this nature would throw the whole body politic into confusion [Kellar v. Savage, 17 Maine, 444]. For it cannot be expected that, in all corporations, persons will be every year selected, who are capable of performing their duty with the exactness which would be useful or convenient." "The first entry made by the clerk here [that an officer was sworn into office] was certainly defective, but the defect is properly cured by the subsequent entry of the existing clerk, he being the same person that officiated at the time of the first entry. He will be sufficiently watched by interested parties, to render a deviation from truth neither safe nor easy." The doctrine of the case in 11 Mass. 477, was followed and applied in Chamberlain v. Dover, 13 Maine, 466, 1836, where it was further held, that the municipal body was not bound by an erroneous record of a clerk, even though the plaintiffs, confiding in its correctness, had made a building contract with the "contracting and building committee " named in the record. The meeting, in this case, which attempted to confer this power upon the committee, was not a legal one, because not held at the time and place appointed; and it was considered by the court that the plaintiffs' remedy was against the committee and not against the town, if the former acted without authority. See, further, as to correcting and amending records, Williams v. School District, 21 Pick. 75, holding that where two different, but not contradictory, records were made up by the clerk from memoranda taken at the meeting that both were originals and competent testimony.

Clerk cannot amend records after he is out of office. School District v. Atherton, 12 Met. 105, 1846; Hartwell v. Littleton, 13 Pick. 229, 232, 1862; Contra, to the effect that he may amend, though out of office at the time, see Gibson v. Bailey, 9 N. H. 168, 1838. But may, while he is in office. Bishop. Cone, 3 N. H. 513, 1821; Hoag v. Durfey, 1 Aiken (Vt.) 286, 1826; Chamberlain v. Dover, 13 Maine, 466, 1836. That successor cannot make the amendment. State v. Williams, 25 Maine, 561, 555; 29 Ib. 523 Taylor v. Henry, 2 Pick. 397. But the corporation might, in proper cases, authorize the successor to supply the omitted, or correct the erroneous, entry. Hutchinson v. Pratt, 11 Vt. 402, 419.

In New Hampshire it is the practice to allow these amendments only upon the order of the Supreme Court or Court of Common Pleas by the officer by whom they were made, even after he has ceased to hold the office. A clear case must be made out. The court do not permit any erasures or interlin eations of the original record, but require the amendment to be written

ing in question. His right to do so though he had mean. time been out of office, but was again restored, was sanctioned by the Supreme Court, Redfield, C. J., remarking: "We think, in general, it must be regarded as the right of the clerk of a town or other municipal cor poration, while having the custody of the records, to make any record according to the facts. His having been out of office, and restored again, could not deprive him of that right. But even an 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." The right of the clerk ex parte to amend the records of the proceedings of town corporations was very thoroughly considered in a case in Connecticut.' The statute of that state requires town clerks to keep the record books of their respective towns, and to enter truly all the votes and proceedings of the town. The town clerk made an entry showing that at a town meeting held in 1843, the town assumed to the plaintiff a liability to commence. January 1, 1844. If the time thus stated was the true time, the plaintiff had a cause of action against the town. In 1849, the clerk, not upon his own personal knowledge, nor upon any written memorandum, but on the information of others (with the correctness of which, however, he was perfectly satisfied), amended the record so as to show that the liability of the town was not, by the vote, to commence until April 1, 1844. If this was the true time, the plaintiff had no cause of action. The majority of the court (three judges against two) held that the clerk, still continuing in office,

upon a separate piece of paper, signed by the proper officers, and with it a copy of the order allowing the amendment; and this paper is annexed to the original record. Pierce v. Richardson, 37 N. H. 306, 311, per Bell, J.

Mott v. Reynolds, 27 Vt. (1 Wms.) 206, 208, 1855. Amendments in open court of town record by clerk of the town pending trial, to which the clerk is a party, and to meet a particular decision of the court, disregarded. Hadley v. Chamberlain, 11 Vt. 618, 1839. Commented on and distinguished. Mott v. Reynolds, 27 Vt. (1 Wms.) 206, 1855.

'Boston Turnpike Co. v. Pomfret, 20 Conn. 590, 1850.

was competent to amend the record-that this power is derived solely from his official character, and does not depend on the permission of the court in which the record is offered as an instrument of evidence, nor on inquiry into the truth of it as originally made, or as amended, and that such a record is, in such an action, conclusive evidence of its own truth. The dissenting judges, without denying the power of amendment in all cases, were of opinion that in view of the lapse of time, the absence of written memoranda, or personal recollection by the clerk, the clerk had no authority to make the amendment, and that the correct course would have been to have made application to the proper court by legal process, e. g., mandamus, to correct the mistake in the record, if one existed, and thus give the opposite interested party an opportunity to show that the record was already right. It would seem, under the special circumstances that the dissenting view was the better one.

§ 234. Where the clerk makes up the record of the proceedings of the council, and it is read and approved at the same or at a subsequent meeting, the author doubts his authority, on his own motion, to amend it afterwards without the direction of the council. The council, unless private rights have attached, may, doubtless, order the record of its own proceedings, even after it has once been approved, to be corrected according to the facts. The Court of Appeals · of Kentucky, without determining the extent of the power of the same council at a subsequent meeting, to correct errors and omissions in the journal entry of proceedings at a previous meeting, decided that this could not be done by an entirely new board in respect to the official action of their predecessors; and it was accordingly held, that where the records, as kept, showed only that in August, 1854, an ordinance was reported, a new council could not, in 1856, add to the records words showing that the ordinance had passed, nor could the fact of its passage be shown by extrinsic evidence.'

1 Covington v. Ludlow, 1 Met. (Ky.) 295, 1858; see, also, Lexington . Headiey, 5 Bush (Ky.) 508, 1869; Graham v. Carondelet, 33 Mo. 262; State e. Jersey City. 1 Vroom (N. J.) 93, 148, and chapters on Corporate Meetings and ordinances, post, sec. 247; ante, sec. 228.