In re Samuel Smith

delivered the opinion of the Court. The clerk of a military company holds an important civil as well as military office, of which citizens liable to the performance of military duty, as well as magistrates and others, are bound to take notice ; and he must be duly appointed and qualified, according to the statute regulating the appointment. St. 1809, c. 108, § 8. The statute requires the captain or commanding officer, to certify on the back of his warrant as sergéant, that he does thereby appoint him to be clerk of the company. A certificate, ex vi termini, means a written instrument signed by the commander, or by his direction. This is the commission of the clerk, the authentic evidence of his title to the office. He must be thus qualified at the time of filing the complaint, which is the basis of the legal proceeding against delinquents, and therefore the signing of the certificate, at the time of the trial was insufficient. This is very distinguishable from Clapp v. Watson, 8 Pick. 449, where there was a cer tificate in writing, defective only as to date.

Certiorari ordered.