Van Nuis v. M'Collister

3 N.J.L. 805

• Court: Supreme Court of New Jersey
• Decided: May 15, 1811
• Status: Published

Opinion

Kirkpatrick, C. J. and Rossell, J.

Wore of opinion that the order was defective; and therefore, that an action could not be maintained on it; and that the judgment bo reversed.

Pennington, J.

— I do not think it necessary to take up any time in considering the question raised by the counsel for the plaintiff in certiorari, as to the legality or regularity of the order of the justices. For even admitting that the order is made in conformity to law, yet 1 am clearly of opinion that this action cannot be maintained. If the over? seer of the poor was bound to pay this weekly allowance, it was a breach of public duty, not to doit, for which he is liable to be indicted, convicted and punished; 3 Burns. J. 663, 668, 5 Bur. 2677, Wood’s Institutes, 421. But I can perceive no principle of law that will authorize the pauper, in whose favor the order was made, to maintain an action in his own name, against the overseer of the poor, [*] for refusing to obey the order of the justices. I incline, however, to think with my brethren, that the order is insufficient; that it should have been made on the application of the overseers, as the act directs that mode. But I wish to be understood as putting my opinion on the ground that the action cannot be maintained by the pauper himself. The government will sec that its laws are obeyed, and punish delinquent officers; but it appears to me a novel attempt, for an individual to institute a private action against a public officer, for a breach of a public duty. Judgment reversed.