
    Daniel Clapp, Petitioner, versus William Watson.
    Where a captain of a company of militia certified on the warrant oí a {sergeant, that such sergeantet has been appointed clerk of said company and has taken the oath necessary to qualify him to discharge the duties of his office,” without dating the certificate, it was held, that the captain (then become major) might-amend by affixing the date, and also that paroi evidence of the time was admissible ; that the oath must be presumed to have been administered by the captain ; and that the certificate was sufficient, though it did not set forth the oath which was administered.
    Ci.app, as clerk of a company of militia commanded by Jabez Green, made a complaint before a justice of the peace, against Watson, for neglecting to perform military duty on the first Tuesday of May, 1828. At the trial before the justice it appeared, that Clapp was appointed on the 12th of September, 1827, a sergeant of the company, which was then under the command of captain Alonzo Temple, and upon his warrant was the following certificate :— “ This certifies that Daniel Clapp, one of the sergeants of the company under my command, has been appointed clerk of said company, and has taken the oath necessary to qualify him to discharge the duties of his office. Alonzo Temple, Capt.”
    Watson objected that the appointment and certificate of qualification of the complainant were informal and insufficient. The complainant then moved that Temple, who at the time of the trial was major of the regiment to which the company was attached, might amend the certificate, by affixing the dare when the appointment and certificate were made and the oath admin istered ; but the motion was overruled.
    
      Oct. 5th.
    
   The complainant then offered Temple as a witness to testify that he administered the oath in September, 1827, and that the certificate was made and signed by him at the time of administering the oath. But the evidence was rejected as incompetent ; and the justice adjudged that the certificate of the appointment and oath of office was informal and insufficient ; and that Watson was not guilty in manner &c.

And now, upon the complainant’s petition for a writ of certiorari to the justice, it was insisted by J. Davis and Allen, for the respondent, that the want of a date to the certificate was fatal; St. 1809, c. 108, § 8; Sherman v. Needham, 4 Pick. 66; Commonwealth v. Sherman, 5 Pick. 239; but it was resolved by the Court, that the captain should have been allowed to amend, and also that his testimony was admissible in regard to the time of making the certificate.

It was also objected, that the oath does not appear to have been administered by the captain ; but it was resolved, that this must be presumed. St. 1809, c. 108, § 8; Commonwealth v. Cummings, 16 Mass. R. 194.

It was further insisted, that the certificate should have set forth the oath which was administered, so that the Court might judge whether it was the oath required by law; Lancaster v. Pope, 1 Mass. R. 86; but it was resolved, that the certificate was sufficient in this respect.

Washburn, for the petitioner.

Certiorari awarded. 
      
       See Revised Stat. c. 12, § 51, 112; Smithy Petitioner, 15 Pick. 446.
     