
    VAN NUIS against M’COLLISTER.
    ON CERTIORARI.
    Justices cannot order an overseer of the poor to maintain a pauper, without an application made by the overseers for that purpose.
    A pauper may not sue an overseer for his support. Per Pennington, J.
    This was an action of debt, brought by M’Collister against Van Nuis, an overseer of the poor of the town of North Brunswick, on the following state of demand:
    The plaintiff demands of the defendant, the sum of eight dollars, it being the allowance of one dollar per week, for eight weeks, to wit, from the 29th day of May, to the 12th day of July, 1810, ordered and directed by Thomas Ilance and Asa Runyon, Esquires, two of the justices of the peace in and for the county of Middlesex, to be allowed and paid by the said defendant, as overseer of the poor of the township of North Brunswick, to the plaintiff, a poor person, belonging to the said township, and standing in need of relief, and which the said defendant (although often requested), hath refused, and still doth refuse to pay the same to him, whereupon he brings this suit, &c.
    
      This demand was grounded on the following order:
    State of New Jersey, Middlesex county: To John Van Nuis, overseer
    of the poor of the township of North Brunswick, in the county of Middlesex; you are hereby requested and directed to make the allowance of one dollar per week to John M'Oollister, (a poor person belonging to your township, and standing in need of relief), and to grant him the aforesaid allowance weekly, until the first Monday in April next, if he should live to stand in need to that time.
    Given under our hands, &c., 9th May, 1810.
    Judgment was rendered by the justice, in favor [*] of M’Collister; and Van Nuis brings this certiorari to reverse the judgment.
    
      Boggs, for the plaintiff.
    This action cannot be supported. It was brought by the pauper himself, in his own name, against the overseer. A right of action did not vest in the pauper, by the order and a refusal to obey it. Besides, the order is defective in several respects; particularly, that it was made by the justices of their own accord, without the application of the overseers of the poor, which the statute, Pat. 30, requires. The justices have not any authority to make an order, unless on the application of the overseers of the poor.
    
      Scott, contra.
    The overseers refused, on application made to them, to apply to the justices for an order. The justices, on this refusal, did perfectly right in making the order, otherwise, the pauper might starve. On the order being made, and the overseer refusing to execute it, a right of action vested in the pauper.
   Kirkpatrick, C. J., and Rossell., J.

Were of opinion that the order was defective; and therefore, that an action could not be maintained on it; and that the judgment be 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 I am clearly of opinion that this action cannot be maintained. If the overseer of the poor was bound to pay this weekly allowance, it was a breach of public duty, not to do it, for which he is liable to be indicted, convicted and punished; 3 Burns J. 663, 668 ; 5 Bur. 2677; Wood’s Institutes, J¡!21. 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 see that its laws are obeyed, and punish delinquent officers; but it appears to be a novel attempt, for an individual to institute a private action against a public officer, for a breach of a public duty.

Judgment reversed.

Cited in Smith v. Inhab. of Perth Amboy, 4 Harr. 52; Overs, of Princeton, v. Overs. of South Brunswick, 3 Zab. 169.  