
    Thomas Bassett, Plaintiff in Error, versus Allen Marshall.
    W here it was proved that a justice of the peace, before whom a clerk of a militia company was alleged to have been sworn, made no record of administering such oath, the testimony of witnesses present when the oath was administered, was holden to be competent evidence to prove the fact
    The original suit, upon which the judgment sought to be reversed ' by the writ of error in this.case was rendered, was brought by the defendant in error, as clerk of a company of militia, against the plaintiff in error, a private in the same company, to recover a fine for disobedience of orders, and was commenced before a justice of the peace, and thence carried by appeal to the Circuit Court of Common Pleas, holden in this county in April last, where judgment was rendered for the original complainant.
    It appeared by a bill of exceptions allowed and sealed by the Chief Justice of the Circuit Court, that the complainant produced evidence of his appointment to the office of clerk, and of his having officiated as such for * several years; but he produced no record of his having been sworn. To establish this latter fact, he offered as a witness a justice of the peace, who testified that he could not positively affirm that he ever administered an oath to the complainant as clerk, though he had some faint recollection of having done it; but that he had made no record of such oath. Two other persons testified that they were present when the said justice administered the said oath.. The counsel for the respondent objected to the admission of the said testimony, insisting that the' only competent evidence of the fact was the certificate of the justice’s record. But the court overruled the objection, and admitted the testimony; and, the respondent’s disobedience of orders being admitted, instructed the jury that the complainant had proved himself duly qualified as clerk, and directed them to find a verdict in his favor, which they did accordingly, and judgment was rendered thereon.
    Baylies,
    for the plaintiff in error, insisted that the witnesses sworn at the trial in the court below were improperly admitted, and that there was no regular evidence of the complainant’s qualification as clerk. 1
   But the Court

were of opinion that, since it was proved that the magistrate made no record of his administering the oath, the evidence admitted was the 1 ¿st that could be required. The testimony of the witnesses was therefore legally admitted, and was competent to prove the fact.

Sproat and Holmes for the defendant in error.

The judgment was affirmed, with costs for the defendant in error. 
      
       Vide Sherman vs. Needham, 4 Pick. 67. — Commonwealth vs. Hall, 3 Pick. 262. — Commonwealth vs. Dedham, 16 Mass. 141.
     