
    Wilson vs. Bryan.
    The designation of hands to work on a road, by two justices of the peace appointed by the county court for that purpose, is void. This jurisdiction by the act of 1804, ch. 1, sec. 17, is vested in the county court, and cannot be transferred elsewhere.
    When hands are designated by the county court to’work on a road under the overseer then appointed: Held, that when his authority ceased, their obligation ceased also, and they were not liable for not working until another order made.
    This suit was brought by the plaintiff, who was overseer of a road, against the defendant, for the penalty for failing to work on said road when he was notified to do so. Wilson was appointed overseer of the road by an order of Madison county court made at the November term, 1831, in which order two justices were directed to give him a list of the hands, but this proof was rejected by the court. No designation of hands to work under Wilson, nor of any bounds within which the hands were assigned to that road, was made in the order appointing him overseer, or in any subsequent order. It appears from the orders of the county court which were offered in evidence in this cause, and are made a part of the bill of exceptions, that at the May term, 1S31, the road was ordered to be opened, and to do'which Wilson was appointed overseer, and “all the hands in Denmark, and within three miles of the road,” were designated to work under him in performance of that service. Within these bounds the defendant resided. At August .term, 1831, Joseph N. Williamson was appointed overseer in the place ■of Wilson, and it was ordered that he work the hands allotted Wilson. There was a verdict and judgment for the defendant in the court below, from which the plaintiff prosecutes this writ of error.
    
      A. B. Bradford, for plaintiff in error.
    The plaintiff says, that although the hands were not assigned in the ¡record of the appointment of Wilson at the November term, 1831, of the county court of Madison, still that the former orders designating hands on> Wilson’s road, placed the hands of defendant on his road; and there has been no order of the court altering or changing the disposition of Bryant’s hands, and,
    1st. That therefore, the court erred in charging the jury that there was no evidence of record, showing that Bryant’s hands were designated to work on said road. .
    2d. In rejecting the testimony that the justices had designated the hands agreeably to order in exhibit D, and that defendant and hands were allotted to Wilson long previous to the time he was notified' to' send his hands to work on the road in question.
    Defendant in error alleges by the act of IS23, ch. 13, (Laws of Tennessee, 288,) Wilson is no overseer, as he lived out of the bounds including the hands made subject to the order by the county court.
    Answer: this is a personal privilege, and he may avail himself of it or not, as he pleases. He is bound, as other overseers for any derilection of duty; so are persons holding themselves out as such, although they may be only so defacto. Act of 1819, ch. 26, sec. —: Laws of Tennessee, 289. Of course you cannot punish an overseer, and at the same time declare that he has no power to compel hands to work.
    
      Stoddart and Brown for the defendant in error.
    The plaintiff, on the trial below, did not show enough to entitle him to sustain the action as an overseer.
    
      1st. It does not appear by the order appointing him overseer, that it was done on a day appointed to do-county business, as required by the statute of 1820, eh.. 14, Sec. 1, 2.
    2d. It does not appear that the plaintiff, when he- was appointed,'lived in the bounds of any hands subject t® work on said road, in compliance with the statute of 1823, ch. 13, sec. 1.
    3d. It does not appear that defendant was notified to* bring tools according to the statute of 1804, ch. 1, sec. 10v
    If the appointment of plaintiff was valid, yet the defendant’s hands were not subject to his order. The county court when they appointed said overseer, gave him no-hands, but only appointed two justices to perform this duty out of court. This they had no power to do. By the statute passed upon the subject, the power of laying: off roads, appointing overseers, and designating the hands who shall work on the several roads, is expressly given to the county court. Statute 1821, ch. 6, sec. 6: 1811, ch. 120, sec. 2. Even’the quorum court has no power to appoint hands to work on a road; but it must be done on days set apart for county business. Statute 1820, ch. 14, sec. 2.
    The defendant in this case was already liable to work under Joseph N. Williamson, by the order of the court at the preceding term. His obligation to Williamson was not removed. He could not work on more roads than one by the statute of 1804, ch. 1, sec. 17.
    The court below did right in excluding the testimony to prove that two justices out of court appointed the hands to work under plaintiff; they had no power to do so, and the county court could not delegate it to them. If they could, they can delegate the whole of that important branch of their jurisdiction, relating to public roads, and vest it in an agent in whom the constitution and laws have reposed no confidence. They can no more do this, than they can delegate any other branch of their jurisdiction.
   Green, J.

delivered the opinion of the court.

The question in this case is, whether the defendant was liable to work on the road of which plaintiff was overseer. By the act of 1804, ch. 1, sec. 17, the authority of designating the bounds within' which the persons residing on roads shall be subject to work on each road, is vested in the justices of the county court. This power cannot be by that court transferred elsewhere. The law has clothed that court with this jurisdiction, and it can no more delegate its authority in this particular than in any other. It follows that the designation of hands by the two justices appointed for that purpose was invalid, and that the evidence of such designation was properly rejected by the court.

But it is insisted that, by prior orders of the court, the defendant’s hands were designated to work on this road, and that these orders were in force when the default happened. Neither of the orders referred to, purport to be a permanent designation of hands, to continue in force until repealed by some subsequent order. Neither of them does more than require the hands designated to work under the overseer then appointed. When his authority ceased their obligation ceased. This is clearly the plain meaning of the orders, and was so understood by the court that made them, for when they appoint the plaintiff overseer, they deem it necessary to make a new designation of hands.

There is no error in the judgment of the circuit court, which is therefore affirmed.

Judgment affirmed.  