
    Commonwealth vs. John G. Taber.
    Bristol.
    October 23, 1877.
    Lord & Soule, JJ., absent.
    If a judge of a district court holds, at the same time, the office of mayor of a city within the district, the question whether he is disqualified to act as judge, by reason of incompatibility in the two offices cannot be determined upon an appeal taken by a person whom he has tried and found guilty upon a complaint originally made returnable before him.
    Complaint to the Third District Court of Bristol, charging the defendant with keeping intoxicating liquors with intent to sell uhe same, in violation of law. In the Superior Court, on appeal, before the jury were empanelled, the defendant filed a plea in bar, alleging that the complaint was received, heard and tried before Alanson Borden, esquire, who at the time of said trial was then and there mayor of the city of New Bedford, and was then and there the judge of the Third District Court of Bristol; and that, by the Constitution and laws of the Commonwealth and the ordinances of the city of New Bedford, Borden was not a proper person as judge to hear and determine the case.
    l'he district attorney demurred to the plea, and the demurrer was sustained, and the plea adjudged. From this judgment, after being tried on the general issue, and found guilty, appealed.
    
      E. L. Barney, for the defendant.
    
      
      W. O. Boring, Assistant Attorney General, for the Commonwealth, was not called upon.
   Gray, C. J.

The competency of the magistrate, before whom this prosecution was commenced, is not objected to on account of any disqualification by reason of personal interest in the pause, as in Richardson v. Welcome, 6 Cush. 331, but upon the ground that, holding the executive office of mayor of the city of New Bedford, he could not at the same time exercise judicial power as a judge within the same territory. As, upon the allegations of the plea, he was at least a judge defacto, his jurisdiction could not be controverted upon this ground, nor the question whether the two offices were incompatible be tried, in a proceeding to which he was not a party. Milward v. Thatcher, 2 T. R. 81, 87. McGregor v. Balch, 14 Vt. 428. Coolidge v. Brigham, 1 Allen, 333. Sheehan's case, 122 Mass. 445.

Judgment affirmed.  