
    Calvin Ward vs. Jacob Dennis.
    If the clerk of a company of militia is present at a training, and is ready to call the roll, but declines to parade the company because he is not sufficiently familiar with that duty, and for that cause alone, the commanding officer has no power to appoint a clerk pro tem.
    
    Error to reverse the judgment of a justice of the peace, imposing a fine for neglect of militia duty, in a suit by Dennis; as clerk, against Ward, as a private.
    At the trial before the justice, the counsel for Ward contended, that Washburn was still clerk, and consequently that the record, being only attested by Dennis, had no legal attestation, and that the action was not rightly brought; and also, that if Washburn was not clerk, Dennis was not legally appointed clerk until Sept.-21, 1838, because a lieutenant cannot appoint a sergeant, this being the province of the captain alone. The justice decided against these positions, and adjudged that the action was maintained.
    The case appears sufficiently in the opinion of the Court.
    
      Vose and Lancaster, for the plaintiff in error,
    cited st. 1834, c. 121, <§, 44, art. 25 ; 8 Greenl. 390,- 2 Fairf. 31.
    
      Bradbury, for Dennis,
    
    cited 2 Greenl. 431; 2 Fairf. 31.
    
   The opinion of the Court was prepared by

Emery J.

The suit originally was for a penalty of four dollars for neglect of military duty on the 15th of Sept. 1838, and also for a penalty of five dollars for the neglect of military duty on 21st of Sept. 1838, the former being a company training, and the latter a regimental review and inspection of the north company in China, as designated in the return made by the selectmen of said town. The warning and neglect were proved. Lieutenant Henry Farris was commanding officer of the north company in China on the 17th Sept. 1837. He appointed Jacob Dennis, clerk, he having been appointed sergeant and had his warrent from Col. Gray the colonel of the regiment, dated March 30th, 1838. It recited the appointment as sergeant by lieutenant Henry Farris the commanding officer of the company and said Farris administered the usual oath on the 2nd of April, 1838.

It was contended, that Z. Washburn, Jr. was clerk because on the record of the roll for 1837, in the proper column for the names of non-commissioned officers, was entered Z. Washburn, Jr. clerk. Captain Farris testified that on the 21st of September, 1837, said Washburn refused to perform the duties of clerk and he appointed the original plaintiff clerk pro tern, at the same time the said Wash-bum however said he was ready as clerk to call the roll, but as to any thing further he knew nothing about the duties of a clerk. Washburn being called by the defendant testified that on said 21st of Sept, he was willing to perform the duties of clerk, and did call the roll but did not parade the company, because he was not familiar enough with the business, and declined on that account alone.

On the report of the magistrate of the trial in the form of exceptions, the court do not consider that the facts stated authorized the appointment of a clerk pro tempore.

The judgment is therefore reversed,.  