
    
      Pearce vs. Hawkins.
    
    Officer. Acts of an officer de facto as they affect third persons, and as effecting himself. One who is ineligible to the office of constable, although invested with the forms of office, and although his official acts will be deemed good and valid as to third persons, in the same manner as if he were an officer de jure, cannot, when put on his own defense, justify under his office.
    This was an action of Trover in the circuit court of Bradley county. At the September Term, 1851, Keith, Judge, presiding, there was judgment for the defendant, and plaintiff appealed in error. The only facts necessary to be noticed are stated in the opinion.
    TREwhitt, for plaintiff in error,
    cited M. & Yerg., 287; 5 Yerg., 271; 2 Yer., 337; 6 Tenn. Eep. 123; 9 Mass. Rep., 235; 10 Ilid., 301.
    Rowles and Gaut, for defendant in error,
    the latter of whom insisted that, an officer de faeto is bound to do the duties of his office, and is liable for failing to do so in the same manner as if he were an officer de jure. 3 Ire. R., 171-74; Bank of the United States vs. Bern-d/ridge, 12 Wheaton’s R., 878; Beam, vs. Gridley, 10 "Wen-da!, 254.
    
      An officer de facto may defend bis acts, as sucb, under legal process. JPattan vs. Pother, 3 Johnson’s K., 431; Berryman ys. Wise, 4 Tenn. K., 366. "Where an action has been commenced by an officer de facto of a corporation, no other person claiming the right to act as the officers of the corporation, the defendant cannot be permitted to show, for the purpose of defeating the action, that the officers were illegally elected. Angel & Ames, 224-5, § 4, page 226.
    When one acts under a colorable title to an office, his title can only be examined before the supreme court, and that directly. MelSmn ys. Somers, 1 Penn. B., 297; IT. S. Digest., yoI. 3, page 72; 7 Johnson’s B., 549. Where an officer attempts to enforce a legal right by action, he must show himself properly qualified; but where the action is agcdnst the officer, it is sufficient if he is shown to be an officer de facto. Fettermcm vs. Hopkms, 5 Watts, 539.
    In justifying an entry under legal process, it is not necessary to prove the fact that the officer was one de yrn'e as well as de facto. Patty vs. Gorham, 4 Pick., 487; IT. S. Digest, 3 vol., 72.
   TotteN, J.,

delivered the opinion of the court.

Trover.for a horse. The defendant justifies the seizure and sale of the property in question, in virtue of his office of constable, and the process in his hands. But as he was resident in the tenth civil district when elected constable for the eleventh, he was inelligible to the office, and his appointment was void.

And in an action against him for an alleged trespass, he cannot defend and justify the act, as being done in virtue of bis office, when it is made to appear that be bas no title thereto, and that bis-assumed appointment was illegal and void.

It is true, that being invested with the forms of office, bis official acts will be deemed good and valid as to third persons in the same manner as if be bad been an officer de jwre. But when put on bis own defense, be cannot justify under his office, if it appear that be is not a legal officer, but only an officer de facto. If this were not so, then there is' no difference between a legal and an illegal appointment to ■ office, and an officer de facto is the same as an officer de jw-e, which is absurd.

Reverse the judgment, and remand the cause for a new trial.  