State v. Holliday

8 N.J.L. 327

• Court: Supreme Court of New Jersey
• Decided: February 15, 1826
• Status: Published

Opinion

By the Court.

The matter stated in the first clause of' the return if true is a sufficient answer to the writ. If when it was delivered to Holliday he was not overseer, he ought-not to be compelled to open, clear out and repair the road, in question, nor indeed could he legally do so. His resistance to 'the rule to shew cause cannot prevent him from making such return, for without expressing any opinion as to the effect of his omission then to deny his holding the-office, such effect could extend only to the time of issuing. the writ. And inasmuch as afterwards and before it was delivered to him he may, under certain circumstances, have legally ceased to be overseer, we cannot undertake to say no such circumstances occurred, or to preclude him from alleging what, if true, is a sufficient reason for his non-compliance ; and the more especially as the truth and legality of the cause assigned by him is placed in the regular mode of trial, and if false, he will be subject to damages and costs. It is not deemed necessary to shew in the return why he was not, or had ceased to be, overseer. The general rules of pleading require simplicity and repudiate argumentation.

The second cause stated in the return is entirely insufficient. The fourth section of the act respecting townships does not render a person ineligible to office for successive years, but only saves him, after serving one year, from being compelled against his will to serve the same office within five years. Holliday therefore may have been chosen in March, 1824, and served one year, and may also have been chosen and served in succeeding years.

Let the rule to show cause be discharged as to the cause first stated in the return, and let the return as to the cause-secondly stated be quashed.