
    MATTER OF HIGHWAY.
    After demanding freeholders, return is not to be recorded unless confirmed by four freeholders.
    
    An order had been obtained in this court, appointing surveyors of the highway, to lay out a road running into two counties; under the act of Assembly as in such case provided. The surveyors had made return of the road; on the coming in of the return the landholders had applied to the court to appoint six chosen freeholders, to review the proceedings of the surveyors, under the supplement to the road act, passed in December, 1807. The court had appointed the chosen freeholders, and five of them had met; the remaining freeholder did not meet, being sick: three of the freeholders were against laying the road, and two for it; but as the act required four of the freeholders to agree to confirm the road, the road could not be confirmed.
    
      Mr. Piunter
    
    now moved the court to vacate the rule for appointing the chosen freeholders, and to order the return to be recorded.
    
      Mr. Griffith
    
    opposed this motion, on the ground that the road could not be confirmed after an appeal to the freeholders, until it was approved of by the freeholders as required by the act.
    
      
      Mr. Hunter
    
    replied, that the road in this way would be hung up forever; that the landholders dissatisfied with the road, were the actors; it was their duty to take the freeholders on the land, and to procure a decision; and if they did not do this, the return 'must be récorded, and the road confirmed.
    
      
       S. P. pott, 812.
      
    
   [*]

Pennington, J.

Mr. Hunter takes for granted, what to him was very questionable, to wit: that the landholders are the actors in this case. He was not sure that the word applicants, made use of in [477] the supplement, applied to the landholders conceiving themselves injured, who, in this case, were to be considered as appellants; that the act was to be taken together with the supplement; that the words of the act, directing the service of notice .and advertisement to be in the same manner as in the original act, appeared to him to warrant that construction. Besides, the reason of the thing and the nature of the transaction required it; that unless there were clear unequivocal words to the contrary, he could not believe the Legislature ever intended such justice as to compel the landholders to be at the expense and trouble of bringing on to the land, the freeholders to conform the road, and take away their land without compensation. The supplement was evidently made in favor of the landholders, to give them another chance with a higher and more confidential board of officers; at all events, he was clear that the road could not be confirmed until it was approved of by four of the chosen freeholders, and therefore, that the motion could not be allowed. ■

Rossell, J.

Considered the word applicants, to mean the persons applying for the appointment of the chosen freeholders.

Kirkpatrick, C. J.

Inclined to think, that the word applicants applied to the applicants for the road; that unless this construction should prevail, he foresaw great difficulty in carrying the law into effect; the landholders would apply in all cases, for the appointment of the chosen freeholders, but would not give the notice, and make the advertisement, or carry the freeholders on to the land; and he was clearly of opinion that the road could not be conformed after the freeholders were appointed, until they approved of it; but as it was not necessary to give an opinion [*] on that point at this time, he would not do it without further consideration ; but was clearly of opinion that the rule could not be granted.

Rule refused.  