The opinion of the court was delivered by

The only question |n this case is, whether Kleinhans, who was plaintiff below, was, at the time of commencing the action, an overseer of the highways of the township of Oxford, in the county of Warren. The action was brought by him, as such overseer, under the 27th section of the act concerning roads, Rev. Laws 615, to recover against the defendant, a penalty for obstructing the highway.

The defence set up on the trial below was, that Kleinhans had not been lawfully elected or appointed to that office. By the state of the case, it appears, that when the annual township meeting was about to appoint overseers of the highways, the moderator asked, whether they should be chosen by the meeting generally, or by the several districts; that is, by the persons residing within the several road districts as the same then existed. It was put to vote, and a majority of the meeting voted in '«vor of appointing in, the manner last mentioned. Klein*476hans was then elected overseer, for the district, by a majority of the voters present, and residing in a certain district. This result was announced by the moderator, and the appointment recorded by the clerk, without any further vote being^taken.-

According to this statement of the facts, Kleinhans was not duly elected; the proceeding was irregular and unlawful. By the 12th section of the act incorporating townships, Rev. Laws, 342, it is enacted, that “ the persons qualified to vote at town meetings, shall have full power and authority, at their respective annual meetings, to elect, for such township, by a majority of votes,” among other officers, “so many overseers of the highways,” &c. But the course pursued by the town meeting in this case, excluded all those persons who did not reside in .a particular road district, from any particiption in the choice of the overseer; and instead of being elected by a majority of the votes of the persons present, “ qualified to vote at town meetings,” he was elected only by a majority of a certain portion of them, and that portion, it may be, a very small minority of the whole number.

If the road districts were designated by law, or otherwise permanently fixed, and the duties and liabilities of the overseer limited to such districts, there would seem to be some propriety in adopting the course pursued in this case: but an overseer of the highway is a township officer; he is elected, “ for such township,” and not for a particular road district. The State v. Sage-man, 1 Green, 314. Besides, by the 14th section of the act concerning roads, the township committee may assign and appoint in writing, to the overseers of the highways, the several limits and divisions of the highways, which they are respectively to keep in repair. It may then happen, that an overseer elected in the manner in which it is admitted the plaintiff below was elected, may be assigned to another district, and thus be placed in office over and among that very portion of the inhabitants who were excluded from voting at his election.

The right of the plaintiff below, to maintain this action in his official character, (and he can maintain it in no other) cannot be supported upon the doctrine of officers de facto. 1 South. *477Rep. 398. Whatever benefit or protection the public, or third persons may derive from acts done by such an officer, the party , himself, can acquire no rights in that character.

The Judgment must be reversed.