¶1The 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.
¶2His appointment to and acceptance of the office of justice of the peace, after his election and qualification as constable, must *130be held to be a surrender of the office of constable. Stubbs v. Lee, 64 Maine, 195.
¶3He 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.
¶4In accordance with the agreement of the parties,
¶5 The action must stand for trial.