The principles, on which, in the opinion of the court, this case must be decided, were settled on a former hearing. Griffin v. Rising, 11 Met. 339. But as the verdict had been in favor of the plaintiff, upon doctrines, which the court thought incorrect, in point of law, the only judgment the court could then render was to sustain the exceptions and set aside the verdict. The court have no authority to order a nonsuit, and it was therefore open to the plaintiff to take a new trial, if he thought he could make a better case.
The case now comes before us again, upon a single point, which is this : the court ruled, that in order to charge the defendants with a breach of duty, as assessors, to the special injury of the plaintiff, he must prove the election and qualification of the defendants, as such officers, by the records, or offer evidence that the records were lost or missing, in order to let in secondary evidence. The court are of opinion, that this decision was correct. The plaintiff expressly avers in his declaration, that at an annual town meeting described, the defendants were legally chosen assessors of said town, and that they accepted and were duly sworn to the faithful discharge of the duties of their office. This allegation lies at the foundation of the complaint, and must be proved. Of this allegation, the record, or an authenticated copy of it, is the regular and proper proof; and other evidence is admissi. ble as secondary only, upon proof of the loss or absence of the record. Thayer v. Stearns, 1 Pick. 109.
Exceptions overruled.