The opinion of the Court was by
Weston C. J.No question is raised in this case, except as to the competency of the proof before the Justice, that the company was mustered, and the plaintiff in error absent, on the day, when he is alleged to have been delinquent. His counsel insists, that this could be legally proved only by the orderly book.
In Cobb v. Lucas, 15 Pick. 1, Morton J. says, that the orderly book is the best evidence of the meeting of the company, and of the absence of the soldier. But the term best, there used, is in reference to the same facts, proved by the testimony of the clerk. Compared with this, the orderly book was the best evidence, and his testimony therefore legally inadmissible. But it is not to be understood from that opinion, that the orderly book is the best evidence absolutely, compared with any and all other evidence. In another case between the same parties, 15 Pick. 7, the same Judge says, the orderly book is competent and sufficient evidence of these facts. In the Commonwealth v. Pierce, 15 Pick. 170, a roll of the company, with arbitrary pencil marks, indicating the *80absence of members of the company, as explained by the clerk, was held insufficient, because by the law of 31assachusetts, the clerk was not a competent witness to give such explanation. It is not deducible from these cases, that in Massachusetts the roll of a company, or the record of the roll, is not competent evidence, that the company had mustered, and that a soldier was absent on a given day.
But whatever may be the law of Massachusetts, we are of opinion, that in this State, the roll and the record of the roll is sufficient and competent evidence of these facts. By the act in relation to the militia, stat. of 1834, c. 121, § 50, the -Adjutant General is authorized to issue blank forms, for the use of the officers, to be uniform throughout the State. In Sawtell v. Davis, 5 Greenl. 438, it was held, that the forms furnished by the Adjutant General, in conformity with law, have the same binding_ force, as if contained in the act itself.
The statute provides, <§> 12, that the clerk shall keep a fair and exact roll of the company, which roll he shall annually revise on the first Tuesday of May. In the forms furnished by the Adjutant General, there is a column to designate the presence, and another the absence of the officers and soldiers. The roll, being a public document, made in pursuance of law, and following the form prescribed by competent authority, is evidence of the mustering of the company and of the absence of delinquents. The order for the muster of the company is proved by testimony, which is undisputed. The roll shows, as the case finds, “ by the usual strait mark,” in the proper column, that the captain, clerk and certain of the company did appear, and that the plaintiff in error did not appear. It would seem, that these facts are sufficiently apparent from the roll itself, without explanation. But if explanation is necessary, the clerk is by the stat. of 1837, c. 276, <§> 8, made a competent witness, to testify to all or any facts within his knowledge. The course adopted is liable to no objection. It appears to have been usual; and if the clerk has a better knowledge than others of the meaning of his marks, and no higher evidence exists, his testimony is made by law admissible. In the Commonwealth v. Pierce, the clerk was not a legal witness. In the opinion of the Court, none of the errors are well assigned.
Judgment affirmed.