Jones v. French

19 N.H. 131

Opinion

Woods, J.

This is a motion, on the part of the clerk of a militia company, for leave to amend his return upon the captain’s order. In Clapp v. Watson, 8 Pick. 449, it was held that the captain’s certificate upon the warrant of a sergeant, that the latter had taken the official oath, might be amended pending proceedings upon the complaint of the sergeant for a militia fine, in which it was necessary to show his appointment and legal qualification. The decision is fully sustained by the general principle of allowing amendments by officers whose returns are made evidence by law of the facts which they contain. The provision of our statute, (Rev. Stat. ch. 78, § 4,) in affirmance of the common law,- gives power to the officer, in the present case, to amend his return “ at any time, so that all the facts may appear.” It is plainly a case in which leave to amend may be granted.

The motion, and the evidence in support of it, are addressed to the court. To such evidence the ordinary rules excluding parties and others in interest, and requiring notice and opportunity to the opposite side for cross-examination, do not apply. It commonly relates to the mere preliminaries of trial, to questions aside from the merits of the case and from the issue, and to facts which lay the ground for the admission of testimony upon the matters really in dispute. The party here seeks to amend his doings as a public officer in a matter of public concern. It interests the public that this return be made correct, — that it be made as it would have been made, on proper advisement, at the beginning, and as it ought to be made upon the facts. That the amendment affects the present controversy is merely an incident, which should in no way affect the right of the party to make it, by imposing upon him a more onerous burden of proof, or otherwise. The rulings in the court below were, therefore, correct.