#### GAGE *v.*PAYNE, PAYMASTER.

Error — court martial — commission—oath of office — judge’s charge to the jury — -bill of except tions.

A court of error looks only to the record: if the error be the improper rejection of evidence, the bill and exceptions should disclose so much of the evidence as to make the error manifest.

Where evidence is admitted without objection, it is too late on a writ of error to except to it.

Where a second commission has been issued to an officer by mistake, the exhibition of the ' second commission without qualification within the time allowed bylaw, does not affect the officer’s legal rights under the first commission.

A militia officer may act as such under a certificate, and be liable to a court martial as such, before he gets a commission.

A judge in giving a case to jury may state a hypothetical case by way of illustration.

A void commission cannot affect the legal rights of an officer under a former valid one.

Error to the Common Pleas. Payne declared in debt against Gage in the Common Pleas for a fine assessed against him for unmilitary conduct as a captain in the militia, by a general court martial convened by the brigadier commanding. Plea nil debet.

On the trial, the plaintiff offered in evidence, a sentence of the court martial, approved by the general, and certified under the militia law to the plaintiff as paymaster for collection, by which it appeared that Gage was fined $>20 for neglect of duty as a captain.

*Gage*objected the introduction of this evidence, unless the plaintiff first showed that the court was a *legal one.*The court decided that the brigadier’s certificate of the sentence and approval was all that was necessary, and prima facie evidence.

Gage, then objected that the plaintiff must adduce proof of his own character as paymaster, but the court decided that the pleadings admitted the plaintiff’s character as paymaster.

Gage then gave in evidence a commission to himself as a captain, on which there was no endorsement, according to the law, of his having been sworn into office.

In rebuttal, the plaintiff gave in evidence the *record*of the court martial, by which it appeared, that Gage appeared before the court and pleaded guilty. He also read several official certificates made by Gage, and signed in his official capacity *as a captain.*

The Court of Common Pleas charged the jury, that the plea of' guilty before the court martial by the defendant, did not give the court martial jurisdiction; and that, whether the defendant was a captain or not, was a question for the jury upon all the evidence, and the want of a certificate on the commission of his having taken the oath, did not require the jury to find the fact of his being no officer. That, if elected to the office, and he Jhad received a certificate under our law and taken the oath, he would be an officer and liable to the court martial, until his commission was received and he refused to qualify under it. And if duplicate commissions *679had issued by mistake, and the defendant had qualified on one of them, the production of the other without the qualification endorsed, making proof that he had kept it more than ten days, would not affect his right to the office. To *this charge*a bill of exceptions was tendered and sealed, and judgment was rendered for the plaintiff.

To reverse this judgment, the following errors are assigned:

1. That it does not appear that any proof was offered of the proceedings of the court martial, but the certificate of one subscribing himself a brigadier general.

2. That the commission ought to have been held the *only*evidence of the appointment of Gage as captain; and the want of a certificate thereon, that the officer had qualified, as *conclusive*evidence that the office was vacant.

3. That the court charged the jury, that Gage might have been elected within ten days before the court martial, and might have acted under a certificate.

4. That the court charged the jury that if, by mistake, two commissions should issue to an officer, and he should qualify under *one,*the exhibition by him of the other without endorsement of the oath, would not affect his right to the office.

5. The general errors.

*E. Wade,*for the plaintiff in error,

cited 29 O. *L.*146; 7 *J. R.*549; *Starlc. Ev.*388, 9; 3 *Star7c. Ev.*40, 1; 3 *Caines R.*129.

*J. C. Paine,*contra.

Wright, J.

The first error relied upon, must have been assigned through mistake of law. The record does not purport to set out all the evidence adduced at the trial, and we do not look beyond it; but it is shown that the record of the court martial was read in evidence without objection. It is too late now to except to its authentication, or to question its effect, and the more so, as we have not that record before us.

The record shows, as to the second exception, that the commission was introduced without endorsement, and the court was asked to charge the jury, that was prima facie evidence, that Gage was no officer, which the court gave with the addition, that whether Gage was an officer subject to a court martial, or not, was with the jury on the *whole evidence,*which was neither concluded nor controlled by the omission to endorse on the commission the oath. We concur with the court below in all that part of the charge which militates against the plaintiff in error. As to the residue, it is unnecessary to remark.

*680The third objection is not well taken in point of fact. The motion excepted to, does not appear in the record — what the court said upon the point we see no objection to.

The fourth objection assumes the ground that a judge in charging a jury, cannot, by way of illustration, state an hypothetical case. We recognize the authority of a judge to do so, and concur in that set forth in the record. We do not see how the legal right to an office, acquired under a valid commission and qualification, could be affected by the erroneous issue of a second commission, void in itself, because no qualification was endorsed on it.

No error is pointed out under the general assignment, nor do any material errors injurious to the plaintiff, meet our view. The judgment is affirmed with costs.