Tbe statute does not require applications for letters of administration to be in writing, and tbe clerk is authorized to ascertain tbe jurisdictional facts, empowering him to act, by affidavit or otherwise. Eev., sec. 26.
Before letters are issued tbe applicant must take and subscribe an oath before tbe clerk and must give tbe required bond. Eev., sec. 29.
Tbe provisions of the statute were performed so far as tbe plaintiff is concerned. He made tbe application, be was sworn and subscribed an oath, be filed a bond with surety, who was examined under oath, and tbe clerk signed tbe letters, of administration. Tbe only irregularity is tbe failure of the clerk to fill out tbe blank places in tbe different papers.
The clerk says be issued letters to tbe plaintiff, wbicb statement, when read in connection with tbe evidence, can only mean that be made tbe appointment, but failed to make a complete record of it. Tbe appointment by tbe clerk is tbe judicial act, and Making tbe record is ministerial (19 A. and E. Ene. L., 1st Ed., 205). Tbe first confers tbe authority, and tbe other furnishes evidence of it.
In Spencer v. Cahoon, 15 N. C., 226, there was an order of appointment, but no bond was filed, and tbe appointment was held valid; and upon a second appeal in tbe same case, reported in 18 N. C., 28, this ruling was adhered .to, tbe Court saying: “It (tbe record) does not state that tbe oaths of Office were taken, it is true; and for that reason, and because tbe bond turns out to be defective, tbe administration might probably be repealed as obtained irregularly • and by surprise. But'no other *272court can declare it void, for it was granted by tbe competent court, and must be respected until revoked, although- committed without taking bond or administering oaths.”
This case was affirmed in Davis v. Lanier, 57 N. C., 310, and in Jones v. Gordon, 55 N. C., 354.
These authorities establish the proposition that when an appointment has been made and entered of record, irregularities in taking bond, and in the performance of other duties required of the clerk, do not invalidate the appointment, and it is equally well settled that whenever, by accident or neglect, there has been an omission to record any proceeding or order of a court, the court has the power to have the proceeding or order entered as of its proper date. Foster v. Woodfin, 65 N. C., 30; McDowell v. McDowell, 92 N. C., 227.
In the first of these cases the Court says: “Whenever, by any accident, there has been an omission by the proper officer to record any proceeding of a court of record, the court has the power, and it is its duty'on the application of any person interested, to have such proceeding recorded as of its proper date. Philips v. Higdon, Bus., 380.” And in the second: “The power of the court to allow amendments of its record is essential, and cannot be questioned, and it ought to exercise such power when it appears that some action was taken, but no minute of it was entered as ought to have been done, as when á judgment was granted, but not entered upon the minutes of the court proceedings at a former term. And an amendment should not be made by simply noting the order to amend, but it should be actually made by turning back to the minutes of the former term and making the proper correction and entry there, so that the entry will stand and be read as if no amendment or correction had ever been necessary. S. v. King, 5 Ired., 203; Jones v. Lewis, 8 Ired., 70; Foster v. Woodfin, 65 N. C., 29.”
We are therefore of opinion, as it appears that the clerk appointed the plaintiff administrator, but -failed to make proper record of his action, that he had the power to comjdete the record thereafter, as of the date of his judicial act, and that having done so, -there is no error in holding that the plaintiff is entitled to maintain this action.
*273Tbe motion for judgment of nonsuit was properly denied.
Tbe age of tbe child made him helpless. He was killed on a straight track-on a clear day, _ and theré is evidence that tbe employees on tbe train were not keeping a lookout.
Tbe jury bad tbe right to infer from these facts and tbe evidence that no proper lookout was maintained, and that by tbe exercise of ordinary care tbe child could have been discovered in its helpless condition in time to stop tbe train and avoid tbe killing; and if so, tbe defendant was negligent.
No error.