
    Elisha Warford vs. Mahlon Smith et al.
    
    1. A certiorari to remove into this court the proceedings of justices and surveyors ordering certain encroachments to be removed from a public road, should be entitled in the name of the prosecutor against the person who makes the application to have such encroachments removed.
    . 3. Notice of talcing affidavits must be given to the opposite party in a certiorari case, although he has not appeared.
    
      Certiorari to remove into this court the proceedings of justices of the peace and the surveyors of highways in the township of Delaware, county of Hunterdon, in the matter of encroachments in a public highway.
    Argued before Justices Elmer and Haines,
    by G. A. Allen, for plaintiff in certiorari.
    
   Elmer, J.

This is a certiorari directed to the justices and surveyors who ordered certain encroachments to be removed in a public road in.the township of Delaware, county of Hunterdon, upon the application of Asa Basen, the overseer. It ought to have been entitled in the name of the prosecutor against said Asa Basen,'he being the opposite party in the case.

Certain affidavits, taken in pursuance’ of a rule of this court, in support of the reasons filed for quashing the certificate of the justices and surveyors, were offered to be read, but no notice of the time and place of taking the same having been given, pursuant to the fifty-eighth rule, they must be rejected. That rule applies as well to cases where the opposite party does' not appear, as where he does. If he cannot be found after proper diligence, that may be a sufficient reason for proceeding without notice; but nothing of that kind appears in this ease.

Upon inspecting the certificate returned, it appears to be radically defective. Notice is not stated to have been given to the proprietors or possessors of the adjacent

land, in the manner held by the Court of Errors in the case of Vantilburgh v. Shaw and others, 4 Zab. to be necessary, nor is their a proper description of the manner in which the road is required to be opened. The certificate must be set aside, and holden for nothing.

Haines, J".. concurred.  