
    Trowbridge against Baker.
    The power conmissimer* in ordering a
    gate open, underlie act concerning turnpike roads, cannot be questioned, because it does not appear that three commissioners were appointed and sworn for the county.
    In an .action for the penalty of 10 dollars, imposed upon a toll-gatherer, by the 3d-sec-tion of that act, for demanding toll after the gate is ordered open, the circumstances of his shutting-the gate, and demanding toll of the plaintiff are, prima facie, evidence of his being toll-gatherer for the company;
    And throws the burthen of proving that he is not so upon him.
    Where there is conflicting evidence in the court below, it is the peculiar province of the jury to weigh and decide upon it.
    And this court will not, in such a case, interfere with the verdict, unless the error is "Very apparent.
    On certiorari to a Justice’s Court. Debt, in the Court below, by Baker against Trowbridge, as collector at Gate No. 1
    
      of Croton Turnpike, in Westchester county, for the penaltjr oí: 20 dollars, for taking toll of the plaintiff after the gate had been ordered open, in pursuance of the 3d section of the act. concerning turnpike roads, (2 R. L. 224.) Issue was joined, and the cause tried by a jury. Two witnesses swore, that on ihe 5th June, 1821, the defendant shut the gate against the, plaintiff as he approached it in his waggon, and demanded toll of him, and told him he could not pass until he paid it. They saw no money paid, but, from what they saw, had no doubt it was paid. Several witnesses for the defendant* swore, that he left home on the 4th, for a house about a mile distant from the gate, and, as they believed, did not return till the 8lh or 9th of June. The notice to open the gate had been given to one Weeks, the predecessor of Baker, at this gate, in October 1820, by one Ferriss, who claimed to be dne of the commissioners of turnpike roads for the county of Westchester. To prove that he was so, he produced, at .the trial, a certificate of the County Clerk of Westchester, that it appeared from the records and papers in his office, that Ferris ¿ arid one Brown were appointed and sworn as commissioners, &c. for the year 1820 ; whereupon the defendant objected that the appointment was not valid, because the ac^ requires the appointment of three commissioners for the, county, 
    
    
      A. Ward, for the plaintiff in error,
    
      Foris, contra.
    
      
      
        2 R.L. 224-5, s. 1.
    
    
      
      
        Id. section, 1, 2.
    
    
      
      
        Id.
      
    
   Curia.

It is objected, 1. That the commissioner, who om dered the gate open, did not shew a legal appointment. 2. That this action lies only against the ioll-gafherer, and there is no evidence that the defendant was the toll-gatherer. 3. That the weight of evidence is against the defendant’s having "been at the gate on the day alledged.

There is no weight in any of the objections. The authority of the commissioner was sufficiently shown. The fact of the defendant’s demanding toll, connected with the other. circumstances in the case, is, prima facie, evidence that he,. was the toll-gatherer. If not so, he should have shown it. It was peculiarly the province of the jury, to weigh the evi.dence, and decide upon it. We do not interfere in such cases, unless the error of the jury is very apparent. Anc| we cannot say, in this case, that we are dissatisfied with the verd_ipt on this point.

Judgment affirmed.-  