#### PHILIP J. TOLLE, *pl’tff in error, vs.*PENDLETON P. STONE, *def't in error.*

*) > Error to Grant county.*

UroN an appeal from the judgment of a Justice of the Peace, the Dig. trict Court cannot inquire into the qualifications of the justice who tried the cause, and decide whether he is legally in office or not. The qualifications of a public officer, or his right to the office, cannot be examined and decided collaterally.

Tolle commenced an action against Stone before a justice of the peace in Grant county. The cause was removed, under the statute, to Cyrus K. Lord, another justice, who proceeded to try the case, and who rendered a judgment in favor of Tolle for $42 50. From this judgment Stone appealed to the Grant District Court. In the District Court, Stone, by his counsel, moved the court to dismiss the suit, because — 1. Cyrus K. Lord, the jus*69tice who tried the cause, never executed a bond to the treasurer of the county, as required by law; and 2d. because, at and before the trial, there was no bond or oath of office of the said justice on record in the office of the Clerk of the District Court of Grant county, as required by law.

It appeared that Lord was duly commissioned a justice of the peace on the 12lh day of January, 1840; he took and subscribed an oath of office on the 10th of February, 1810, and executed a bond according to the form of the statute, which was signed by two sureties, but not by the principal, which was approved by the treasurer of the county; which bond and oath of office were deposited with the clerk of the District Court, and marked “ filed 12 February, 1840,” but were never recorded in any book.

Upon this state of facts it was insisted that Lord was not a justice of the peace, and could not lawfully entertain jurisdiction in any cause; and the court decided, that not having complied with the requisitions of the statute as to his qualifications, he was not a legal justice of the peace, and dismissed the suit upon the motion submitted; to reverse which judgment Tolle has prosecuted this writ of error.

The question presented for the consideration of this court is; did the District Court err in dismissing the suit upon the motion of the defendant.

WinAM KNowmw, for pl’tffin error:

The decision of the District Court was erroneous for these reasons:

1. It was too late to take objections after issue joined and a continuance had been had before the justice, Stat. Wis. 333, sec. 7; 1 Brown’s Penn. Rep. 95.

2. The bond, though not signed by the principal, was sufficient to bind the sureties, and was therefore good. *Union Barilc of Maryland vs. Bidgley,*1 Har. & Gill, 324; *Andrews vs. Beall et al.*9 Co wen, 693.

3. Though the bond and oath of office were not recorded, they were filed with the clerk, whose duty it was to record them, and that was sufficient. *Young et ads. vs. The Commonwealth,*6 Bin-ney,88; *Althorp vs. North et als.*14 Mass. Rep. 167.

4. The authority of an officer cannot be inquired into collaterally; the officer himself must be made a party to the proceeding. *707 Amer. Com. Law, 477,478; *The People vs. Adams,*9 Wendell, 464 ; 3 Tomlin’s Law Dictionary, 280 to 287.

5. General reputation of officers is sufficient in all cases except in *quo warranto. Potter vs. Luther,*3 John. Rep. 431; 2 Star-tie, 218, 732.

6. Lord, although he never gave bond according to law, if he accepted the office and took the necessary oath, he was an officer, *de jure,*and he was only liable to a penalty. *Gilbreath vs. Brown, et al.*15 Mass. Rep. 107; 7 Amer. Com. Law, 144;, *Marbury vs. Madison,*1 and 2 Cranch, 49.

7. If Lord was not an officer *dejure,*he was an officer defacto,. and his acts are valid so far as the public and third persons are concerned. *7*Amer. Com. Law, 142; *McKinstry vs. Tanner,*9 John. Rep. 135; *The People vs. Collins,*7 John.Rep. 549; 5 ■ Wendell, 231; 1 Hill, 674; *Me Kim 3? Armstrong vs. Somers,*1 Penrose & Watts’ Penn. Rep. 297; *The United States vs. hash,.*decided in this court at the July term, 1840. '

Bevans, for def’t in error:

The general principle, that the qualifications of public officers cannot be inquired into collaterally, is admitted. But this is not like any of the cases that have been cited before the court. Most of those cases are where the acts of ministerial officers have been called in question; many of them were suits in which the rights of parties in some way depended upon the official acts of an officer, and in such case the law will not allow the qualifications of the officer to be questioned. If a sheriff, constable, or coroner sells property, and a contest arises in consequence, as in the cases cited from 15 Mass. Rep. and 2 Aiken’s Rep.; or if the officer is himself sued for the official acts of himself or deputy, as in the cases cited from 3 John. Rep., 3 Ohio Rep., 3 Amer. Com. Law, 10 Wendall, and other references, proof of his qualifications cannot be required; or in other words, his official character can be established by proof of his acting in the capacity claimed. But this is a different case. Here a man attemptsLto exercise judicial-authority in a subordinate station, and his acts are appealed from to the court that has the immediate supervising jurisdiction. In the superior court it is insisted that the inferior officer had no authority to try the case; that the proceedings are *coram non judi-ce,*and the District Court is asked to send the case out because it did not come there from any lawful authority. Has it no power *71to inquire into the authority of those who pretend to fill judicial stations? If it has *not,*a man without even a commission, may usurp the office of justice of the peace, and the parties who may be brought before him have no means of getting rid of his authority. His liability to the public cannot in any way affect the private rights upon which he has adjudicated, and the tedious proceeding of *quo warranto*is the only remedy.

The statute makes the taking and subscribing the oath of office, executing the bond, and filing and recording both, conditions precedent, which must be complied with before any one enters upon the discharge of the duties of the office of justice of the peace. Until these pre-requisites are complied with, he is not an officer cither *de jure*or *de facto.*

Opinion of the Court by

Judge limit;

Chief Justice Dümn dissenting:

Upon examination of this case it appears that the plaintiff commenced, on the 2d day of September, 1841,. a suit before a justice of the peace (Bennot Atwood) in and for the county of Grant, against the defendant, by process returnable on the ninth of said month, when the parties appeared, and under the provisions of the statute, removed it before another justice of the peace, Cyrus K. Lord. The suit was to recover damages for injury done by defendant to a horse of plaintiff’s,and for which a jury found a verdict in favor of plaintiff for forty-two dollars and fifty cents, on which the justice gave judgment, and from which the defendant appealed to the District Court of Grant county, in which, when the cause came on for further trial, the K defendant by his attor-torney, moved the court to dismiss this cause, because,

1st. The said C. K. Lord, before whom the cause was tried, has never executed a bond to the Treasurer of Grant county as required by the law to be executed by all justices of the peace, before entering upon the duties of his office.

2d. Because, at and before the trial of the said cause before the said C. K. Lord, the was no bond or oath of office on record in the office of the clerk of the District Court of Grant county, as required by law;” which motion was sustained, and the cause dismissed at plaintiff’s costs, and to which decision exception was taken by plaintiff, and the cause brought here to correct the error as complained of in that decision and judgment of the District Court.

The only question presenting itself here for the consideration *72of the court is; did the District Court err in permitting the qualifications of *C.*K. *Lord*(the justice before *whom the*cause was tried) to be inquired into and acted upon collaterally? It is contended *that the*court did err, and, in support of *the*position, re. ference is made to a decision of this court at a former session, Lask vs. U. S. July Term, 1840; 9 Wendell, 464; vol. 7 American Com. Law, pages 477, to 478; and numerous other authorities. In 1 Penn. Reports, 297, in the case of Me Kim and Armstrong against Somers, in error, the question arose on an objection to a deposition alledged to have been taken before a justice of the peace whose commission had been vacated by force of law. The decision of the court was against the objection, and inasmuch as the judge who delivered the opinion, has gone fully into the consideration of the subject, we could not, perhaps, do better than to give his views as he has given them himself, believing, as a majority of this court does, that it is a case in point. Judge Rogers says:

> “ The plaintiff also objected to a deposition in evidence, on *the*ground that Joel C. Bailey, the person before whom the deposition was taken, was not a justice of the peace. Whether the facts alledged in the bill of exceptions would vacate the commission of the justice, we are not called upon to determine. Whenever an information is filed, it will be time enough to determine the question. At present we think it even improper to intimate an opinion. And this is not accorded to Mr. Bailey as a favor, but is *nothing more*than common even-handed justice, that he should have an opportunity of being heard, and be permitted, if occasion should require it, either to traverse the facts, or contradict the conclusions of the law attempted to be drawn from them. It would be the height of injustice if we were now to determine, or even suffer his right to bold his commission to be called in question, in a cause in which he is no party and cannot be heard. The counsel' for the defendant objected to the court going into the question whether he was a justice *de jure*at all, and in this wo conceive they were in the strict line of their duty. They contended, and with a force that has not been weakened by the reply, that it was sufficient for their purpose that he held a commission from competent authority, and that in taking the deposition, which is an official act, he was acting in the district for which he was appointed; that this constituted him a justice defacto, with at least colorable authority; and that as long as the commission remain*73ed, without being superseded by the Governor, or vacated by the Supreme Court,, the validity of his acts could not be- questioned. One would have supposed that these reasonable objections would have been entitled to respect; for, setting aside the extreme injustice of impeaching, or even impairing the right to an office, without giving an opportunity of hearing the party principally affected by the decision, the inconvenience, and I may add, in some cases, indelicacy of the inquiry, would be intolerable. If the plaintiff had been heard in this preliminary matter, the opposite party would have been permitted to controvert the facts by the introduction of testimony on their part, and this would open a scene which I should be sorry to see exhibited in a court of justice, An examination would ensue before the court, which in some cases would last a week, whether a deposition should be received, in a case of the most trifling nature and amount, as the court would be both judge and jury. The inconvenience of this novel doctrine would cause them to pause before they acceded to it. If I understand the counsel, they admitted the law, in its full force, as respects ministerial officers, but denied it as respects judicial officers. I should have been pleased to have seen some authority in which the distinction is taken; the reason for such a distinction is not very apparent. If this be law as regards ministerial officers,' which may be shown by a host of authorities, I say, *a fortiori,*it should be so held in the case of judicial officers. The law is formed on policy and convenience, reasons which' apply with ten fold force to officers of the latter description.’’ And afterwards, the same judge, in speaking of the case of the Commonwealth vs. Richard Bache, says: *“*Richard Bache was indicted for an assault and battery on Alderman Binns. The indictment contained two counts; one for an assault and battery; the other for an'assault and battery upon Alderman Binns, while in the execution of the duties of his office. It was the opinion cf the whole court, that Binns’ right to the office he held, could not be questioned on the indictment, and we accordingly suspended giving judgment, and put Bache to an information in the nature of a writ of quo war-ranto.”

A majority of this court considers this the true doctrine upon this subject, and as recognized by the authorities already referred to, as well as 11 Viner’s Abr. 114; 7 John. 549; 5 Wendell, 231; 9 John. 135; 15 Mass. 170.

*74Knowlton, for pl’tff in error.

Bevams, for def’t in error.

We are therefore compelled to reverse the decision of the District Court, with costs.