This indictment is founded on the statute, which enacts punishment by imprisonment or fine for any person,who “shall falsely assume or pretend to be a justice of the peace, sheriff, deputy sheriff, coroner, or constable, and shall take upon himself to act as such, or to require any person to aid or assist him in any matter pertaining to the duty of a justice of the peace, sheriff, deputy sheriff, coroner or constable.” Rev. Sts. c. 128, § 19. We think the crime here described is the false personation of a sheriff or other officer of this commonwealth; for the conditions are,that the party shall falsely assume or pretend to be such officer, and shall take upon himself to act as such. That signifies that he falsely pretends to possess official authority. But he cannot exercise official authority as such officer, unless commissioned according to its laws. Of course, to pretend such authority he must assume to be an officer of this commonwealth. This qualification being of the essence, it must be averred in the indictment. It is not averred in either of the counts of the present indictment. That is a fatal defect, and on that ground judgment must be arrested.

If it were otherwise, we think, on the facts reported, there would have to be a new trial. The allegation in the first count is merely that the defendant pretended to be a sheriff; and in the second that, so pretending, he seized and carried away certain chattels. The proof was that the defendant declared himself a sheriff of the state of Connecticut, but also produced an order for the chattels from Smith, claiming to be their owner, they being claimed on the other hand as the property of Brooks. The judge, who tried the cause, ruled *64that, taking into consideration the other facts in the case, ii would avail nothing to prove that the defendant was a sheriff of the state of Connecticut, or that the property belonged to Smith. But those facts seem to be material; for if he was actually a sheriff in Connecticut, and did not pretend to be a sheriff of Massachusetts, then there was no false personation; and if he held a valid order for the chattels from their true owner, that would justify the taking, and would not be the less a justification because of his being an officer in the state of Connecticut. Judgment arrested.