
    Haywood against Wheeler.
    NEW YORK,
    October, 1814.
    
      ovm?ereo( the fastens, jm35.S2 /v/fi % «égiedA/re iuses to serve, whereby he incurs the peby'the' a«,S (2 sessí^íc laj appointed1 an° made n’ablefor naityforthe^6 cond refusario Where a person lias been
    IN ERROR, on certiorari, from a justice^ coilrt. Wheedeclared, in the justice’s court, in debt, for that Haywood had. been duly appointed one of the overseers of highways, in afid for the town of Grainger, by the commissioners of highways> a§'reeabty to the act, &c.; and that after being so appointed, he neglected and refused to serve; by reason whereof Í , , , , , J he had incurred the penalty of twelve dollars and fifty cents, The defendant pleaded not guilty.
    H was proved by the commissioners, that they had appointed Haywood as one of the overseers of highways for that town; 3I2(^ when so appointed, he resided in the district; and t^iat made out a list of the persons in the district, with the number of days they were assessed to work, with their warrant, requiring him to cause the number of days to be Worked, and delivered the same to him, and that he neglected and refused to accept the appointment.
    It was proved by Haywood, that he had been elected overseer of the district, to which he was appointed, at the preceding town meeting; that he had refused to accept the office, and had been sued by one of the commissioners for the neglect, and the penalty recovered against him; and that the vacancy to which he had been appointed had been occasioned by his refusal as aforesaid.
    There was a verdict and judgment for the plaintiff below, for twelve dollars and fifty cents.
   Spencer, J.

delivered the opinion of the court. By the first section of the act relative to the duties and privileges of towns, (2 N. R. L. 125. sess. 36. c. 35.) overseers of highways are to be annually chosen; and the 9th section of the act imposes a fine of twelve dollars fifty cents for neglecting or refusing to take the office. The 14th section of the act regulating highways, (2 N. R. L. 270. sess. 36. c. 33.) provides, that if any vacancy in the office of overseer of highways shall happen, by death, or otherwise, the commissioners of the town shall appoint other or others in his or their stead,” who are rendered liable to the same penalties as overseers chosen are liable to. The commissioners exceeded their powers In appointing the same person, who had been elected, and refused to qualify, to the same office. They were confined, by the terms of the act, to the appointment of some person, other than the person refusing. The legislature considered the pe» nalty as an equivalent for the service; and if the construction be tolerated which the court below have adopted, the person refusing to accept the office, for which he might have very urgent reasons, would be subjected to endless litigation, if not ruin. Whether, therefore, there was legal proof of the recovery of the former penalty, or not, Haywood stood exposed to be sued for the penalty, and was not liable to be appointed to the office.

Judgment reversed.  