
    Paul Pooler vs. William F. Reed.
    Piscataquis.
    Opinion January 5, 1882.
    
      Justice of the peace. Constable.
    
    The appointment to and acceptance of the office of justice of the peace is a surrender of the office of constable by one who has been elected and qualified as such.
    When an officer justifies his action as done by virtue of his office, the fact that he was such officer de facto, is not sufficient. He must show his - legal title to the office. ’
    On report.
    Trespass in which damages are claimed for an alleged illegal arrest of the plaintiff by the defendant, at Bangor, in June, 1880. Writ was dated December 8, 1880.
    The opinion states the material facts.
    
      H. L. Mitchell, for the plaintiff.
    
      Barker, Vose and Barkerf for the defendant.
   Libbey, J.

The defendant justifies the arrest and imprisonment of the plaintiff, as constable of Bangor, having a legal mittimus therefor. He thus puts directly in issue his legal capacity as such officer.

His appointment to and acceptance of the office of justice of the peace, after his election and qualification as constable, must be held to be a surrender of the office of constable. Stubbs v. Lee, 64 Maine, 195.

He was an officer de facto when he made the arrest, and while acting as such officer, his acts would be yalid as to third parties ; and as between them his title to the office could not be tried; but when he is a party and justifies his acts as such officer, he must show that he has a legal title to the office. Stubbs v. Lee, 64 Maine, 195 : Fowler v. Bebee, 9 Mass. 231; Sheehan’s Case, 122 Mass. 445; Green v. Burke, 23 Wend. 490; People v. Hopson, 1 Denio, 574; Reddle v. Bedford, 7 Serg. & R. 386; Parker v. Luffborough, 10 Serg. & R. 249 ; Keyser v. McKissan, 2 Rawle, 139.

In accordance with the agreement of the parties,

The action must stand for trial.

Appleton, C. <T., Barrows, Virgin, Peters and Sxmonds, JJ., concurred.  