
    ADDIS, Overseer, &c., against PRIEST.
    OH CERTIORARI.
    No road can be recorded after chosen freeholders are appointed, until approved and certified by them. But see note at the end of this case.
    The action below was brought by Addis, an overseer of the highway, against the defendant, for obstructing the highway, in which action, he recovered a penalty of ten dollars. On the trial, it was proved that the highway in question, had been laid out by the surveyors of the highway ; the return ordered to be recorded [594] by the .court, the road opened for public use, and that the defendant, Priest, liad obstructed it by setting a fence across it.
    The defendant offered to prove by the public records of the court, that on the return of the surveyors, the court had, on due application, appointed six freeholders to review the road; that these freeholders had certified; but that the certificate of the freeholders had been set aside by the court for irregularity; and that the court had appointed a second set of freeholders; [*] but that the applicants for the road did not produce in court any certificate from the second set of freeholders; on which the court, without any certificate of the freeholders, ordered the road to be recorded. This evidence was rejected by the justice, and the record of the road considered as conclusive evidence of a lawful road.
   Pjexxixgton, J.

After an application is made to the court, for the appointment of chosen freeholders, to review a road laid out by the surveyors of the highway, the road cannot be recorded, and become a lawful highway, until it is approved by a majority of the chosen freeholders so appointed; which approbation must be certified to the court, under the signature of four of the said chosen freeholders. The fourth section of the supplement to the Road Act, declares in express terms, that the signature of four of the chosen freeholders, shall be requisite to render the return of the road made by the surveyors, valid and effectual. The second section directs the freeholders to certify their approbation to the court, and also directs the coui’t to cause the same to be recorded in the book kept for that purpose, in the office of the clerk of the county.

It appears by the case, that application was made to the court for the appointment of chosen freeholders, and that the court appointed them. It ought further to appear, that a majority of the freeholders approved of the laying the road, and that their approbation has been certified to the court, under the signature of four of them; and that the court had ordered that certificate to be recorded. But nothing of this to have been done. The court, on the contrary, appear to have gone on the mistaken notion, that the persons applying for the appointment of the chosen freeholders, were bound to get the freeholders to certify their disapprobation of the road; or that for their default, the return of the surveyors should [*] be recorded, and the road made valid, than which nothing is further than the law. After an appeal is made to the freeholders, there can be no road without their approbation, duly certified. I am, therefore, clearly of opinion, that the defendant below, ought to have been permitted to give this matter in evidence, [595] to show that there was no existing road; and that for this cause, the judgment must be reversed.

Boggs, for plaintiff.

Hardenburgh, for defendant.

Kirkpatrick, C. J., and Rossell, J. — Were of the same opinion.

Judgment reversed. 
      
       The Legislature on the 22d February, 1811, repealed the then existing road laws, and enacted a new one, altering the law on this subject; in which it is provided, that if the chosen freeholders, or a majority of them, shall neglect to certify that the road is unnecessary, or if the freeholders shall be equally divided, the proceedings of the surveyors shall be deemed valid and effectual; and that the clerk, by order of the court, shall record the same, and the road shall be a lawful road, from the time appointed for opening the same.
     