After advisement, the opinion of the Court was drawn up by
Weston C. J.By the stat. of 1834, c. 121, to organize, govern and discipline the militia of this State, section forty-five, it is made the duty of clerks of companies respectively, to prosecute *191for all fines and forfeitures, incurred by non-commissioned officers and privates. And if there be no clerk to prosecute, it is to be done by the captain or commanding officer of the company. By the forty-sixth section, the clerk is to retain one fourth part of what may be thus recovered to his own use. The residue is to be paid to the commanding officer, and such part of it appropriated to defray company expenses, as a majority of the commissioned officers may judge to be necessary. By the additional act of 1837, c. 276, the captain is directed to assume and prosecute any action commenced by the clerk for such fine or forfeiture, where the clerk may die, resign or refuse further to prosecute, pending the action. And the act last cited, makes the commanding officers, subaltern officers, and all clerks of companies competent witnesses, in such prosecutions, to all or any facts, within their knowledge. The clerk is interested directly in a part of the forfeitures, and the officers indirectly, in the appropriation of a part to company expenses, notwithstanding which, they were to be received as competent witnesses. But if they, or either of them, acquire or assume any other interest, not imposed by their official situation, it constitutes an objection, which the statute does not remove. The captain and the other two officers had become responsible for tbe costs, which they would not have been officially. This in our opinion rendered the captain an incompetent witness ; and the third error is therefore well assigned.
Judgment reversed.