
    Patton vs. Clark.
    The record must show that there were one third, or twelve justices present when an order opening and establishing a road is made.
    Where the opening of a road is contested, and the person contesting it is made a party, and appeals to the circuit court, where evidence isheard, ar.d the judgment of the county court establishing the road is affirmed.' Held, that in such case it is not necessary that the record of the county court should show that the jury of view was sworn..
    This is an appeal from a proceeding in the county court of Madison, directing the opening a road in said county. The record shows an order of the court appointing five persons to view and report as to the expediency of opening the road in question. The report of the persons so appointed, was made-in favor of opening the road, and an overseer was appointed and an order establishing the road was made.
    The plaintiff in error applied to be made a party to thepro-r ceeding; opposed the establishing of said road, and appealed from the county court judgment to the circuit court of Madison county. In the circuit court, evidence was heard touching the necessity, and propriety of establishing said road. Upon the whole case, the circuit court was of opinion the road ought to be established, and affirmed the county court judgment. From this judgment, this appeal in error is prosecuted. The record showed there were twelve justices present when the order Was made in the county court, but it does not show-that the jury of view was sworn.
    
      T. P. Scurlock, for plaintiff in error.
    -McClellan, for defendant in error.
   Green, J,

delivered the opinion of the court.

The plaintiff in error insists, that the récord ought to show that a majority of the justices were present when the order to open the road was made; and that not being shown there is error.

It is true, that by the act of 1804, a majority of the justices of the county were required to be present at the making an order to open aroad; but by the act of 1817, c. 48, § 6, it is provided that one third, or twelve justices, shall be sufficient to transact any kind of county business. This record shows that twelve justices were present when each of the orders in this case were made.

For the plaintiff in error, it is next insisted, that the record ought to show that the jury of view were sworn, and that as this does not appear to have been done, the whole proceeding is erroneous. In support of this objection, the case of Douglass vs. Rawlings, 4 Haywood’s Rep. 111, is cited. It is decided in that case, that it must appear in the proceedings that the jury were sworn, otherwise it will be error. How this is to be shown, is not stated; but from the statement of the case, in connection with the opinion of the court, it would seem the court thought the jury of view should state that fact in their report. By the act of 1813, c. 40, the sheriff or his deputy, is authorised to administer the necessary oaths to juries of view, and it would seem, that if it be held essential to the validity of the proceeding that this should appear of record to have been done, that the sheriff who performs the act, should report that the oath had been administered. But admitting that if this cause had come to the circuit court by writ of error, it would have been the duty of that court to have reversed the judgment of the county court, because it did not appear that the jury were sworn, still, it does not follow, that in this case there is any error in the circuit court judgment. By the act of 1827, c. 69, § 2, an appeal is allowed in all matters of controversy relative to the laying off, discontinuing, or establishing any public road or ferry, by the county court. Before that act, a writ of error, or a certiorari operating as a writ of error, was the only means of correcting the county court judgments on these subjects. Thus stood the law when the case of Douglass vs. Rawlings, was decided in 1817.. It is therefore no authority forthis case. Here a broad appeal upon the merits of the case, was prosecuted. Evidence was heard by the circuit court, and .the whole merits of the cause were examined. The report of the jury of view was altogether su-perceded by the appeal. The report was only intended to inform the county court of the facts, by which they might be enabled to act upon the subject. But on the trial in the circuit court, other evidence was introduced, and the facts were fully-investigated by the introduction of witnesses in court. If the jury of view had been sworn, and their proceedings had been ever so regular, their report would have had no weight with the circuit court. Does it not follow, that any irregularity in their investigations can have no weight against the judgment of the circuit court. Suppose this had been a case • tried before a jury in the county court, and the record had not shown that the county court jury was sworn, but instead of a writ of error, a broad appeal had been taken to the circuit court, where the cause was regularly tried upon its merits; would it not be most clear, that upon a writ of error to this court, this error of the county court would not effect the judgment of the circuit court? How then can the failure to swear the jury of view in this case, have that effect? We think there is no error in the judgment of the circuit court, and order it to be affirmed.

Judgment affirmed.  