
    MATTER OF HIGHWAY.
    
      Mr. Ewing
    
    moved, on petition of a number of freeholders of Burlington and Middlesex counties, for the appointment of surveyors of the highways to lay out a road.
    
      Mr. L. H. Stoelcton objected to the rule,
    1st. That the notice did not designate the hour in the day that the application would be made; there ought to have been a specification of a precise hour.
    2d. That there was no proof that the applicants were freeholders.
    
      
      Mr. Ewing. The notice has been sufficiently particular; the precise hour of the day is not necessary to be set out in the notice; nor is it ever practiced in notices of this kind.
    The petition and advertisement allege the applicants to be freeholders and residents, and that is sufficient; it is not necessary to bring their deeds with them, or witnesses to prove their freehold.
    [*]
    
      Mr. Stockton, in reply.
    The proof of the facts lies with the applicants; they must make out the material matter entitling themselves to the order.
   By the Court.

It is not necessary to set out the precise hour of the day that the application is to be made, but we think it incumbent on the applicants to prove that they are freeholders and residents in the county of which the petition and advertisements allege them to be; particularly as it is denied.

The fact was then proved by persons in court, on which,

Mr. Stockton then contended, that it was necessary to have ten petitioners from each county.

Kirkpatrick, C. J.

It has been adjudged [492] that ten freeholders in all is sufficient.

It was then proved that a former order had been made for laying out a road over the same ground, with a small nominal variance; but that the former order extended a considerable distance beyond the one now applied for; and that one application was for a four rod road, and the other for a three rod road; that the surveyors met on the order, and refused to lay out the road, and that the year had not expired since the former order.

By the Court.

It is substantially the same road. The applicants must wait the year.

Cited in Smock v. Vanderveer, 12 Vr. 304.

Overruled in Matter of Road, 2 Halst. 37. 
      
       Contra 2 Halst. 36.
      
     
      
       See Pat. 389, sec. 11; Rev. L. 616; Vide. South. 347.
      
     