The act (Laws, vol. 1. 326, 327. 329.) declares, that “ if any constable, chosen, Uc. shall refuse to serve, it shall be lawful for the inhabitants of the town to supply such vacancy at a special town meeting, to be notified and held, Ue.; and that if the town shall not, with n 15 days next after such refusal, Uc. choose another, it shall be *71lawful for any three justices of the peace residing in or near such town, and they are required by warrant under their hands and seals, to appoint every such officer which the town ought to have chosen; and every officer so appointed, shall hold his office for so long time-, and have the same powers, and be liable to the same penalties, as if elected. And that if any person so appointed a constable, &c. shall refuse to serve, he shall forfeit a penalty of 62 dollars and 50 cents.”
These are the statute provisions relative to the subject, and the record states that the defendant below was appointed constable by three justices, in the form prescribed by the act; and the warrant recited that Laurence, one of the constables of the town had, for more than 15 days, refused to serve, and that the town had not appointed another in his stead, and that therefore they appointed the defendant.
To an action of trespass for serving an execution, the defendant below, as constable, justified under this appointment; and the court below then admitted testimony to prove that Laurence had not refused to serve, and the question brought up is on the competency of this proof.
This appointment is a judicial act, for the justices must first determine and adjudge that there is a vacancy in the office, and that the town neglected to fill it up. It is not traversable in such a collateral action. The appointment remains valid until it be set aside or quashed in the regular course, upon certiorari. It is certainly sufficient to justify the constable. He comes to the office by an appointment, regular, according to the forms of law, and made by a tribunal having jurisdiction in the case; and he is bound to accept, under a penalty. He is not to inquire, at his peril, into the validity of the act. It is sufficient that three justices have authority to make such an appointment in the given case. It would be intolerably oppressive to place the constable in the dilemma of subjecting himself to a grievous penalty, if he *72refuses, or of being prosecuted for trespass, if he accepts. If two justices only should appoint him, it would then be a case in which no jurisdiction existed, and the appointment would be null and void. The distinction in the books is between cases where the authority proceeds from a source possessing jurisdiction over the subject matter, and from one that does not. The ministerial officer can justify in the one case, and not in the other. (Brown v. Compton, 8 Term Rep. 424.) The testimony offered to impeach the appointment was inadmissible, and the judgment must be reversed.
Judgment reversed.