Winnegar and Cook, Overseers of Amenia, against Roe

Winnegar and Cook, Overseers of Amenia, against Roe. Debt against highways,61'for the penalty of $12,50, under 44, eh. 128, s. 1,) for refusal to accept the office, does not lie, except where the town proceed to a new election. Merely neglecting to file notice of his acceptance with the town clerk, is not enough. The object of the statute was to enforce the perfoimance of his duties ; And if the town proceed to a now election, then to exact the penalty. On certiorari to a Justice’s Court. In the Court below, Winnegar and Cook declared against Roe, in debt for $12,50, for that he, being elected to the office of Overseer of highways, in 1822, had not, agreeably to the statute, filed his acceptance in the Town Clerk’s office. Plea, not guilty. The Town Clerk produced the book of records, in which was recorded, “ Jeduthan Roe, Overseer of highways for said town.” He testified that Roe was elected Overseer for district 12 ; that lie had searched the books and papers in his office, and could find no acceptance by Roe of the office. The defendant called Robert Wilson, who testified, that on the 17th April, 1822, Roe handed him a list of inhabitants, liable to be assessed on highways ; Roe said he had not filed his acceptance of the office of Overseer. Another witness proved that Roe had called out the men to work in the district, and claimed the work assessed to be done. The jury found a verdict for defendant. [MAJORITY — Curia.] Curia. By the act, 23d March, 1821, (sess. 44, ch. 128) it is declared, that every person, chosen to the office of Overseer, shall transmit or deliver to the Town Clerk of the town, within 15 days after the election, a notice in writing, signifying his acceptance of the office; and if he neglects, such neglect shall be considered a refusal to serve, and the city or town may proceed to a new choice; and in every such case, the person refusing to take upon himself such office, shall forfeit $12,50, to be recovered in the name of the Overseers of the Poor. The penalty attaches on the person elected, if he omit to signify his acceptance, and the town thereupon proceed to a new choice. The object of the statute was to enforce the performance of the duties by the person elected, and, if the town was compelled to a new election, then to exact the penalty. In the present case, the defendant performed the duties of his appointment; the town did not deem it necessary io elect another. Neither, by the words or spirit of the act, .has the penalty been incurred. Judgment affirmed.