To sustain this action, it must appear that the defendant was the agent of the plaintiffs, duly ap*310pointed in accordance with the provision of the Act of June 2, 1851, c. 211, § 2, 3. The plaintiffs claiming this relation to exist, the burthen is on them to establish its existence. To constitute the defendant an agent, it must be shown, that •the requisite bonds have been given, and that the defendant has received a certificate of his appointment from the proper authorities.
The original certificate is not in -the case, nor was the defendant notified to produce it. The copy of the record of the proceedings of the selectmen is attested by the chairman, who is not a' recording officer, and his attestation is not the proper verification of a record. There is no legal evidence that the defendant has ever received the certificate which the statute directs to be given to the agent.
The bond given to the plaintiffs was not produced, and no reason was offered to excuse its non-production. Without its production, we cannot know whether it is such as the statute requires, as a prerequisite to the giving of the certificate.
The plaintiffs failing to prove the defendant to have been their agent, cannot, upon the proof before us, maintain this action.
Plaintiffs nonsuit.