The  opinion  of  the  court,  accordingly,  is  that  the  rule  for  a  per-
emptory mandamus  be  granted,-^


PEOPLE  v.  HOPSON.
(Supreme  Court  of  New  York,  1845.     1  Deuio,  574.)

The  defendants  were  indicted  for  assaulting  and  beating  Peter  Las-
cells,  a  constable  of  the  town  of  Salisbury,  Herkimer  county,  and  re-
sisting him  in  the  execution  of  his  duty  as  such  constable.
Bronson,  C.  J.-®  *  *  '''  The  next  question  is  on  the  offer  to
show  that  Lascells  had  not  taken  the  oath  of  office,  or  given  security,
and  so  was  not  a  legal  officer.  The  evidence  would  be  proper  if  Las-
cells,  instead  of  the  people,  was  the  party  complaining  of  an  injury.
If  he  were  suing  to  recover  damages  for  tlic  assault,  it  would  probably

2  4  Only  a  portion  of  the  opinion  is  printed.
25  See  State  v.  Carroll,  38  Conn.  440,  9  Am.  Rep.  400  (1871);  also  an  arti-
cle on  De  Facto  Office  by  K.  R.  Wallach,  in  22  Political  Science  Quarterly,
450.
2  6  Only  a  portion  of  the  opinion  is  printed.
Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  113

be  a  good  answer  to  the  action  that  he  was  not  a  legal  officer,  but  a
wrongdoer,  who  might  be  resisted.  And  clearly  he  cannot  recover
fees,  or  set  up  any  right  of  property,  on  the  ground  that  he  is  an  of-
ficer de  facto,  unless  he  be  also  an  officer  de  jure.  Riddle  v.  County
of  Bedford,  7  Serg.  &  R.  (Pa.)  386 ;  Keyser  v.  McKissan,  2  Rawle
(Pa.)  139 ;  Fowler  v.  Beebe,  9  Mass.  231,  6  Am.  Dec.  62 ;  Green  v.
