
    Freeman against Cornwall.
    NEW YORK,
    Oct. 1813.
    A private not lie against the°h?ghways, l°r ptiraon8'm default in not worKing as required, and to'a^rnagis■trate, and causing a warrant of distress to be issued, under the lltli section of the act to regulate highways. (Sess. 24. c. 186.) It seems that this proceeding may be reviewed by this court on certiorari, and set aside if mot ivcK feuuded-
    jjyT jgRROR, on certiorari, from a justice’s court. Cornwall brought an action of trespass on the case against Freeman, before the justice, for taking hay belonging to the plaintiff, under pretence of being pathmaster, See. The plaintiff proved that a constable t0ok and sold two stacks of hay belonging to the plaintiff, by vire ■*» , , . . . _ , tue of a warrant issued by a justice ot the peace on the complaint of the defendant, a pathmaster, against the plaintiff; that the hay wa~ worth 36 dollars, and was sold by the constable, at auction, for 1 dollar and 62 cents. The plaintifF had been warned to work on the highway one day, which he did; and was afterwards warned to work another day. The plaintiff was not present on that day, but his son was there. Several witnesses were examined on bothtiides, and the justice gave judgment for the plaintiff for twenty-five dollars.
    
      Lush, for the plaintiff in error,
    cited 1 Johns. Rep. 474. 3 Caines’ Rep. 170.
    
      Foot, contra,
    cited 1 Johns. Rep. 345.
   Per Curiam.

The act of the defendant below, for which he was sued, was for adjudging the plaintiff in default in not working on the highway, as required by law; and for complaining to a magistrate, and causing a warrant of distress to be issued in pursuance of the act to regulate highways. (Sess. 24. c. 186. s. 11.) But the defendant was not answerable, in a private action, for any error of judgment in the execution of his trust, as an overseer of the highway. He is only responsible for any neglect or refusal, under the 11th section of the act, which subjects him, in such case, to a penalty. This seems to be the opinion of the court in the case of Bouton v. Neilson. (3 Johns. Rep. 474.) Perhaps his proceedings might have been reviewed on a certiorari, and set aside if not well founded. But a private suit will not lie against an overseer of highways, for adjudging a party in default, and making his complaint. It will lie only in the cases provided in the statute.

Judgment rever,sed.  