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 *291also 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,.