
    Thayer versus Stearns et al.
    
    Where the defendants in an action of trespass justified as assessor!, ana shewed by the records of the town that they were duly elected at a town meeting legally warned, it was held, that they were not bound to go behind the records and show that the proceedings of the warning officer had been regular.1
    1 See St. 1823, c. 138.
    This was an action of trespass de bonis asportatis. The defendants pleaded the general issue, and filed a brief statement, pursuant to the statute, in which they justified as assessors of the town of Milford for the year 1819. To maintain the issue on their part, they offered in evidence the records of the town, by which it appeared that at the annual March meeting in 1819, which was held on the first day of the month, they were elected by the inhabitants to be assessors for the ensuing year. The plaintiff objected to the admission of this evidence, until it should be shown that the meeting of the inhabitants had been duly warned. The constable’s return of the warrant for the meeting was dated on the same first day of March ;' in which he certified only that he warned the inhabitants by posting up copies, without saying at what time. The defendants then proved, by the testimony of the town clerk, that he had diligently searched among the files of papers in his office for the original warrant, and that it was not to be found, but must have been accidentally lost; and they then offered to prove, by several witnesses, that a paper purporting to be a copy of a warrant from the selectmen of Milford for the town meeting in question, and attested by the constable, was posted up on the meetinghouse in the mannei and for the time required by a vote of the town for warning town meetings. Wilde J., who tried the cause, being of opinion, that it was incumbent on the defendants, to prove that the meeting at which they were elected assessors was duly warned, and that the evidence offered for this purpose was inadmissible, directed a verdict for the plaintiffs, subject to the opinion of the whole Court upon the question of law arising out of the case ; and if the defendants, in order to their justification as assessors, were not bound to prove that the meeting at which they were elected was duly warned, or if the evidence offered to prove the warning was admissible under the circumstances of the case, then the verdict was to be set aside and a new trial granted ; otherwise, judgment was to be rendered for the plaintiff.
    
      Lincoln and Newton, for the defendants.
    The defendants were elected assessors by the town at a meeting required bj law, and were recorded as so elected. The records are conclusive evidence of their election, and this action will not lie against them merely in consequence of an informality in calling the meeting. They are not bound at their peril to ascertain whether all the steps preliminary to their election were regular. They have no control over the selectmen or constables, and are not to be amerced for any fault committed by those officers. It is a sufficient protection to them, that they were elected at a town meeting and took the oath of office.
    If, however, the assessors are bound to prove their election to be legal, they are to bring the best evidence that the case will admit of. Here the records of the town are produced. They show, that there was a meeting of the inhabitants, at which the defendants where chosen assessors, that a warrant was directed to a constable duly elected, and that there was a return of the warrant. It is to be presumed that the service of the warrant was in' conformity to the vote of the town, as presumptions are to be made in favor of public officers. If the original warrant was in existence, the constable might have amended his return, and then the town clerk might have amended his record. This not being the case, the testimony of witnesses was admissible, as the next best evidence, to supply the defect in the return. [ Wilde J. The objection was, that the next best evidence was not produced.] The constable, when examined, said he did not recollect at what time he posted up the notice ; but his testimony cannot be better than that of other persons who saw him do the act, and if his memory failed him, their testimony ought to have been received.
    The defendants vt ere assessors de facto, and their acts were therefore lawful. Commonwealth v. Fowler, 10 Mass. Rep. 301; Commonwealth v. Athearn, 3 Mass. Rep. 287
    
      
      Hastings and E. H. Mills, for the plaintiff.
    The defendants justify as assessors ; it is incumbent on them to prove that they were such officers. The record shows that there was a town meeting and an election ; but it does not show that the meeting was legal ; and if it was not legal, its acts are void. Assessors are required to prove that they are duly sworn ; Welles v. Battelle, 11 Mass. Rep. 480; it is equally necessary for them to show that they are regularly chosen. The case of Saxton v. Nimms, 14 Mass. Rep. 320, decides the point, that the defendants must show that the meeting was duly warned. It does not appear, that the mode of warning meetings, pointed out in the statute, has been pursued. The constable should show in his return how and when he executed the warrant. Lancaster v. Pope, 1 Mass. Rep. 88, and Welles v. Battelle. His return should be wholly in writing, and paroi evidence is inadmissible to explain or amend it. Davis v. Maynard, 9 Mass. Rep. 247; Purrington v. Loring, 7 Mass. Rep. 392; Williams v. Brackett, 8 Mass. Rep. 240. This, however, is not a proposition to amend the record or return, but to supply a deficiency in them, and by testimony which must have been defective, because the witnesses could not tell whether the paper posted up was a true copy of the warrant or not. Where an officer amends his return, he does it at his peril; Thacher v. Miller, 11 Mass. Rep. 413; but if this oral evidence were untrue, the plaintiff would be without any remedy.
   Parker C. J.

The assessors, acting by virtue of authority from the town, must, like other agents, prove their authority. They must show that they were legally chosen and duly qualified to act. And it is necessary, in order to make out this point, that they should show that the inhabitants of the town were legally assembled at the meeting when they were chosen.

This should be proved by the records ; and if so proved, parol evidence cannot be admitted to contradict the fact, for the officers can only look to the records for their authority; as was settled in the case of Saxton v. Nimms et al. 14 Mass. Rep. 320.1

But if the records are burnt, mutilated, or otherwise destroyed, paroi evidence may be let in to supply the defect; as has been decided in several cases relating to the warning on PauPers m the towns within the county of Suffolk, where the records of the Court of Sessions for a certain period were destroyed by fire.

The return of the officer on the warrant for calling the meet ing is not conclusive of the day on which he notified the inhabitants. He dates his return on the day of the meeting, and says he has notified the inhabitants to meet, &c., by posting up notifications. This is not an unusual, though an imperfect discharge of duty. Such a return cannot be supposed to mean, that on the day of the date the service was made, but it is intended only as a certificate that the duty required had been performed. It is a case in which the officer would be allowed to amend his return at any time during his continuance in office, as in the case of Welles v. Battelie. The fact not appearing of record, that the notification was out of season ; the meeting having been held as though regularly warned, and it being so certified; and it being an annual meeting required by law, every presumption should be in favor of its regularity. It has been said in argument, that heretofore assessors have been obliged to go behind the record and show from the beginning that all the proceedings have been in strict compliance with the law ; if so, it has been in cases different from the present, and in which the title to real estate has been in question ; .and then it must have been on the ground, that a strict execution of the law is required to be proved, when a man is to be deprived of his inheritanee by statute. The question is not then between an individual and an officer who has acted in the execution of his office, but between a purchaser who should look to the title, or rely upon his covenants, and one who would own the land but for the operation of a statute upon it. The cases are widely different; for a suit against an officer must proceed upon some negligence of duty, or violation of a constitutional or legal right, and it would be unjust to charge him for the mistakes and errors of other officers, if by the records it shall appear that the act complained of was one which he was officially bound to perform.

The case of an assessment upon one who is no '-sgally lia Die to be taxed, and of assessing a tax which the town had no authority to raise, are different in principle from this case ; for, m the first instance, the assessor commits the wrong himself, and in the other, he acts under, an authority wholly void. Here the inhabitants were assembled at the time prescribed by law for the organization of the town for the year, and the record states, that they had been legally warned for this purpose, and that the defendants were duly elected assessors, and were sworn to discharge all the duties of that office. They were not obliged to look back and ascertain whether the constable had performed his duty, and cannot, under these circumstances, be charged as trespassers. There must be some limitation to the right of inquiring into the regularity of proceedings by towns, or no officer would be safe in the execution of his duty; and we think, when it appears of record that a meeting has been regularly called, and the meeting has been held and the officers chosen at such meeting without any objection on account of deficiency in warning, that any anterior irrregularity, provable only by paroi, cannot vitiate the choice.

New trial granted. 
      
       See Anon, yost, 196.
     
      
      
        Stetson v. Kempton, 13 Mass. R. 272. See Ingraham v. Doggett, 5 Pick. 451; Inglee v. Bosworth, 5 Pick. 498; Gage v. Currier, 4 Pick. 399; Withington v. Eveleth, 7 Pick. 106.
     
      
      
         First Parish in Sutton v. Cole, 3 Pick. 232. In trespass for taking and driv ing away cattle, where the defendant justifies as field-driver, it is sufficient for him to prove that he was chosen at the annual town meeting for choosing town officers, without producing any record of a vote of the town prescribing the time and manner of notifying town meetings, and without proving a compliance with such vote in the notification of the meeting in question; and the notification will be presumed to be legal, unless it is shown to be otherwise. Gilmore v. Holt, 4 Pick. 258. See Pejepscut Proprietors v. Ransom, 14 Mass. R. 145; Mussey v. White, 3 Greenl. 290; Waldron v. Lee, 5 Pick. 326; Blackburn v Walpole, 9 Pick. 100.
     
      
       See Durfey v. Hoag, 1 Aikens’s R 286.
     