32 Tenn. 87 | Tenn. | 1852
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
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.
