The opinion
The opinion of the Court'was drawn up by
Weston C. J.
Although the defendants had been defaulted, and were no longer at liberty to controvert the cause of action set forth in the plaintiffs’ declaration, they had a right to be heard in damages. And if settled by a jury, in pursuance of a request made by the plaintiffs, we are of opinion, that either party might except to any legal opinion of the presiding Judge in instructing them, upon what principles, they should be governed.
It would, in our judgment, be of dangerous consequence to suffer the records of a town to be contradicted by parol evidence, in respect to matters, regularly within the jurisdiction of a town or its officers, and which is entered of record in pursuance of law. It has been held, that parol proof is inadmissible to supply an omission in town records. Taylor v. Henry, 2 Pick. 397 . In Manning et al. v. The fifth parish in Gloucester, the same evidence was rejected in regard to parish records. There is a still stronger reason, for the exclusion of such evidence to contradict them. In Jones v. The Inhabitants of Andover, where the laying out of a *346 town road was in controversy, the court say, “ we are satisfied that a board of selectmen in this, as well as other branches of their duty, may lawfully perform their duty by a major part of the whole number.”
But if the testimony were admissible, we are not satisfied, that it would vitiate the proceedings. The selectmen are not obliged to locate the road in person. They may perform this service either personally, or by such person or persons, as they shall appoint. St. of 1821, c. 118, >§> 9. By this it must be understood, that although the return of the laying out to the town, must be made and signed by a majority of the selectmen, they ma.y depute to another the actual location, by running out the road, and marking or setting up monuments. If they availed themselves of the agency of one of their number for this purpose, we are aware of no legal objection to such a course, whether this was done in virtue of a previous consultation, or subsequently approved and ratified. If one of the selectmen employed the hand of another to affix his signature, he made it his, as much as if he had done it by his own hand.
Exceptions overruled.