
    Breckinridge, &c. vs. Ward.
    Error to the Jefferson County Court.
    Motion.
    Case 28.
    October 9.
    Roads, Error.
    
    it-musta pear tile' record of the proceedings road,thatthe commission-erswere ^ve°™ the way; ' that it apPearst|ley Wards sworn, will not avail,
    FortIl;ger ror,the order’ reversed, without dithor proceedings below.'
    Wickliffe, for plaintiff; Bibb, for defendant.
   Opinion, of the Court, by

Judge OwsleSt.

THE record in this case contains one error, for which the oVder establishing the road must be reversed.

The error to which we allude consists in the omission of the record to show that the commissioners were sworn, previous to their viewing the ground over which the road was established. The only evidence going to show that the commissioners were sworn, is contained in an affidavit made before a justice of the peace, the 10th of May 1822. But, admitting they were then sworn, it is apparent from other parts of the secord, that in taking the oath the commissioners did not act in conformity to the injunctions of the law. The report contains no date-, but it suggests that the commissioners had viewed the way, and caused a survey of the sámelo be made; and that survey (which is referred to and made part of the report) bears date the 7th of May 1822, three days prior to the date of the affidavit. So that in fact the way must have been viewed by the commissioners, not as the law requires, after they were sworn, but previous thereto.' .

The order establishing the road must, therefore, be reversed with costs.  