
    *State against Conover.
    MATTES OF ROAD.
    1. Where a caveat is entered against recording the return of surveyors, and the court, in appointing freeholders to view the road, and certify whether they believe the same necessary, should by mistake or inadvertence appoint a man through whose land the road runs, as one of tlio six freeholders to view the road, and he actually proceeds, with the five others, to view, deliberate, and advise touching the same, although he does not actually sign the certificate, yet the court may set aside the said appointment of freeholders, as incautiously made.
    2. But if the appointment of freeholders is thus sot aside, at the term succeeding the entering of the caveat, the court cannot, at a subsequent term, make another appointment of freeholders, for by the first appointment of freeholders their authorfiy over this subject expired.
    3. The circumstance, that this second appointment of freeholders was made upon the motion, and by the consent of the prosecutor of the certiorari, will not alter it, for consent can never give jurisdiction.
    4. Though the proceedings and certificates of the freeholders are not subj ect to bo reviewed upon certiorari, yet the proceedings of the Court of Common Pleas, in the appointment of such freeholders, and their judgment upon such certificate, are subject to such review.
    5. That part of the seventh section of the “ Ad. concerning roads (passed 9th February, 1818, Rev. Lams, 618), which enacts, “ that the Court of Common Pleas shall not set aside the proceedings of the surveyors for illegality or irregularity,” means illegality in point of form only, and not illegality in matter of substance. And, the, Court of Common Pleas may set aside the proceedings of surveyors for illegality in matter of substance.
    
      6. That part of the seventh section of the act which enacts, “ that the certificate and proceedings of the freeholders appointed after caveat filed shall be binding and conclusive in all cases, and shall not be subject to an appeal or certiorari, or be set aside for lack of form,” is to be understood to moan, that their proceedings shall not be subject to certiorari at all, and shall not be set aside, even in the same court, for form only. But for matter of substance they may be set aside, as in all other cases of a similar nature.
    A petition, in the usual form, and signed by John Buck, John H. Smock, and others, freeholders, &c., was presented to the Court of Common Pleas of the county of Monmouth,, in the term of January, 1822, for the appointment of surveyors to lay out a public road of three rods wide in the townships of Freehold and Middletown, in the county of Monmouth. And the court, upon this petition, made the following order :■ — “ On application of John Buck and above ten others, freeholders and residents of the county of Monmouth, who, by. their petition to the court, represent that they think a public road of three rods wide, in the townships of. Freehold' and Middletown, in the said county, to begin at the little bridge near the village of Freehold, in the road leading from the said village of Freehold to Colt’s Neck; thence running as straight a course as the nature of the ground and other circumstances will admit of to or near a cedar *tree standing in William Davis’ field, near Richard Throckmorton’s house; and thence continuing as straight a course as the nature of the ground and other circumsumstances will admit of till it intersects the present road leading from the said village of Freehold to Middle-town Point, near John Buck’s tavern; thence continuing as straight a course as the nature of the ground and other circumstances will admit of till it intersects the road lead•ing from Middletown Point to Brown Point, near Whitlock’s tavern on Middletown Point, and there to end — is necessary, and would be conducive to public interest and convenience; and having prayed the court to appoint surveyors of the highways of the said county to meet at such time and place as the court shall direct for the purpose of laying out the said road : and the court being satisfied that due and legal notice of this application had been given, do nominate and appoint William Boice and Thomas Be Bow, of Freehold, James Hopping, of Middletown, David P. Haring and John S. Forman, of Howell, and Edmund West, of Shrewsbury, six of the surveyors of the highways of the said county, to meet at John Casler’s, in Freehold, on the 18th day of .February next, at ten o’clock forenoon, and to proceed according to law.”
    The surveyors met, laid out the road, and made the following return : — “We, the subscribers, six of the surveyors of the highways of the county of Monmouth, appointed on the application of John II. Smock and others, more than ten of the freeholders and residents-of the said county, by the Inferior Court of- Common Pleas of the said county, in the term of January last, to lay out a public road of three rods wide in the townships of Freehold and Middletown, in the said county, as by the order and appointment of the said court, on the minutes of the said court, a certified copy whereof is hereunto annexed, more fully appears, do hereby certify and return, that having met agreeable to the order of the said court, on this eighteenth day of February, in the year of our Lord one thousand eight hundred and twenty-two, at the house of John Casler, in Freehold in said county, and due proof being made to us that advertisements of our said meeting have been signed and set up according to law, and having viewed the road, do think and adjudge the said road, as applied for and as mentioned in the said order of the court, to be necessary, and have laid out, and do accordingly lay out *the same as appears to us most for the public conveniency, and having regard to the best ground for a road and the shortest distance, in such manner as to do the least injury to private property, as follows, to wit: We do lay out a public road of three rods wide in the townships of Freehold and Middletown, in the said county, to begin at the little bridge near the village of Freehold in the road leading from the said village of Freehold to Colt’s Heck; thence north, thirty-four degrees and forty-five minutes east, thirty-six chains and fifty-four links, to a cedar tree; thence north, nineteen degrees and twenty-four minutes east, one hundred and six chains, to a stake standing west of Hay’s barn ; thence north, twenty-one degrees and thirty-nine minutes east, one hundred and sixty-six chains and fifty links, to a stake standing near John Buck’s shed; thence north, twenty-eight degrees and ten minutes east, ten chains; thence north, six degrees and thirty minutes west, eighty-six chains and fifty links; thence north, nine degrees and thirty minutes west, fifty-four chains, to a stake; thence north, ten degrees and twenty minutes east, ninety-eight chains, to a stump, standing in the middle of the highway leading from Monmouth court house to Middletown Point, near David Honce’s; thence north, eighteen degrees east, fifty-two chains and eighty links; thence north twenty-five degrees east, sixty chains, near a cooper’s shop ; thence north, twenty degrees east, thirty-five chains and sixty-six links ; thence north, ten degrees and thirty minutes east, twenty-six chains and seventy-five links, to a stake standing west of William Johnston’s tavern in Mount Pleasant; thence north, fourteen degrees west, nineteen chains; thence north, ten degrees east, twenty-nine chains and thirty links, to a stake standing near Delafayette Schenck’s; thence north, forty-one degrees and forty-five minutes east, thirty-four chains and thirty links, to a wliiteoak tree standing near John Schenck’s house; thence north, thirty-four degrees and thirty minutes east, twenty-one chains and thirty links ; thence north, twenty-three degrees east, twenty-one chains; thence north, seven degrees east, three chains and forty-five links, to the intersection of the road leading from Middletown Point to Brown’s Point, and there to end; which' said lines of course are in the middle of the public road now laid out, that is to say — the said public road is now by us laid out at one and a half rods width on each side of the said line of course hereinbefore *expressed, which said road, so by us laid out, we have caused to be marked at proper distance in the line of the same; and we have caused to be made a map or draught of the said road so laid out, and of the courses and distances, most remarkable places and improvements, through which said road passes, through the lands of William Davis, Denise Forman, deceased, Ool. Elias Conover, deceased, Hays Griggs, and others; and we do hereby fix the first day of August next ensuing the date hereof, as the time when the overseers of the highways of the said townships of Freehold and Middle-town shall open the same for public use. Dated at the house of John Buck, innkeeper, in the township of Freehold, the twenty-first day of February, in the year of our Lord eighteen hundred and twenty-two.”
    Against the recording the return of the surveyors, the following caveat was filed: — “To William Ten Eyck, Esq., clerk of the Inferior Court of Common Pleas of Monmouth. Let this be a caveat against recording the return of a certain public road in the townships of Freehold and Middletown, in the said county, laid out on the twenty-first day of February, instant, by William Boice and Thomas De Bow, of Freehold, David P. Haring and John S. Forman, of Howell, and Edmund West, of Shrewsbury, surveyors of the highways of said county, on the application of John Buck and others, beginning,” &c., (describing the road as in the return of surveyors, and signed by Tunis G. Vanderveer, Jacob Schenck, and twelve others).
    After the filing of the caveat, Tunis G. Vanderveer, in the term of April, 1822, presented to the Court of Common Pleas of Monmouth the following petition for the appointment of freeholders: “ The subscriber, of the township of Freehold, in the county of Monmouth, thinking himself injured by a certain road laid out by William Boice and Thomas De Bow, of Freehold, Edmund West, of Shrews-bury, David P. Haring and John S. Forman, of Howell, five of the surveyors of the highways of the said county of Monmouth, on the twenty-first day of February, in the year of our Lord eighteen hundred and twenty-two, beginning,” &c., (describing the road, as in the return of the surveyors) “ and having, with a number of others, entered a caveat against recording the same, does most respectfully apply to your honors to appoint six of the chosen freeholders of the said county to view the said road, and proceed thereon agreeably to *ihe act of assembly in such case made and provided. Dated April 22, A. D. 1822.”
    The court, upon said petition, made the following order: “ On application of Tunis G. Vandorveer, who conceives himself injured by a certain road laid out by William Boice and Thomas De Bow, of Freehold, Edmund West, of Shrews-bury, David P. Haring and John S. Forman, of Howell, five of the surveyors of the highways of the said county of Monmouth, on the twenty-first day of February, in the year of our Lord eighteen hundred and twenty-two, beginning,” &c., (describing the road as in the return of surveyors) “ and having, together with a number of others, entered a caveat against recording the same, and having prayed the court to appoint six of the chosen freeholders of the said county to meet at such time and place as the court shall direct, &c., the court do nominate and appoint Joseph H. Vanmater and John P. Vanpelt, of Middletown, John J. Ely, of Freehold, James West, of Shrewsbury, James Lloyd and Thomas Cook, of Howell, six of the chosen freeholders of the said county, to meet on Monday, the 20th day of May next, at the house of John Buck, in the township of Freehold, at the hour of ten o’clock A. M., to view the said road, and further to prot ceed thereon as the law directs.”
    Four of the six freeholders appointed by the court, viz: John J. Ely, James Lloyd, Thomas Cook and James West, make the following certificate and. return: “We, the subsoribors, chosen freeholders of the county of Monmouth, appointed, by the Inferior Court of Common Pleas of the county aforesaid, at the term of April last, on the application of Tunis G. Vanderveer, t.o view a public road laid out in the county aforesaid on the twenty-first day of February last, by William Boice and Thomas De Bow, of Freehold, Edmund West, of Shrewsbury, David P. Haring and John S. Forman, of Howell, five of the surveyors of the highways of the said county, beginning, &c., (describing the road as in the return of the surveyors) “ do hereby certify and return, that having met, agreeably to the order of the said court, on the twentieth day of May instant, at the house of Jacob Dennis, in Freehold, and having been duly sworn and affirmed according to law, and having viewed the road so laid out, and having heard what could be said for and against the said road, we do believe and adjudge the said road, as laid out *as before mentioned and described in the said return of the said surveyors, to be useful and necessary. Dated May 21, 1822.”
    On the return of the above certificate, in the term of July, 1822, the following rule was taken : “ The freeholders appointed by this court having returned a certificate in favor of the said road, as returned and laid out by the surveyors, it is ordered, on motion of S. Stockton for those who object to the said x-oad, that the applicants for the said road show cause on the first day of the next term why the certificate of the freeholders and the return of the surveyors should not be set aside.”
    In the term of October following, the above rule was argued by H. Stockton and Southard for those who opposed the road, and Scudder and Wall in favor of the road. And the Court of Common Pleas, after argument, decided “ that the return of freeholders on said road be set aside and holden for nothing, and that those who think themselves aggrieved by said road have until the first day of the next term, inclusive, to make application for the appointment of freeholders de novo on the same.”
    
      In pursuance of this decision of the court, the following petition was presented for the appointment of freeholders de novo : “ To the Judges of the Inferior Court of Common Pleas at Freehold, in and for the county of Monmouth, the application of the subscribers, freeholders of the said county, respectfully sheweth — that in the term of January, in the year of our Lord eighteen hundred and twenty-two, John Puck, and more than ten others, freeholders and residents .in the said county, did apply to your honors to appoint surveyors of the highways for the purpose of laying out a public r.oad of three rods wide in the townships of Freehold and Middletown, beginning at the little bridge near the village of Freehold, and running from thence as straight a course as the nature of the ground and other circumstances will admit of to or near a cedar tree standing in William Davis’ field, near Richard Throckmorton’s house; and’thence continuing as straight a course as the hature of the ground and other circumstances will admit of till it intersects the present road leading from the said village of Freehold to Middletown Point, near John Puck’s tavern; thence continuing as straight a course as the nature of the ground and other circumstances will admit of till it intersects the road leading from Middle-town Point to Prown’s Point, near Whitlock’s tavern, on *Middletown Point, and there to end — whereupon your honors did, at the same term, appoint six surveyors for the purpose mentioned in the said application; that the said surveyors, having taken on themselves the burthen of the said appointment, did, by their return, bearing date the twenty-first day of February, 1802, lay out a certain road between the said points, which was returned to this court in the term of April in that same year; that a caveat against recording the same road was duly filed, and an application made, in writing, by the applicants to appoint six chosen freeholders to view the said road — whereupon the court, in the said term of April, did nominate and appoint six of the chosen freeholders of the said county to view the said road, according to the act of the legislature in such case made and provided, namely, Joseph II. Vanmator and John P. Vanpelt, of Middlesex, John J. Ely, of Freehold, James West, of Shrewsbury, and James Lloyd and Thomas Cook, of Howell; that this court, for want of necessary information, and by reason of the return of the said road not designating the landholders through whose land it ran, did appoint one John P. Vanpelt as one of the said freeholders, although the road so returned by the said surveyors did in fact run through the lands of the said John P. Vanpelt; that the said Vanpelt acted as such freeholder in all the services done by them, except that he did not subscribe his name to the said report of the said freeholders, having voted in favor of the said road, but declined signing it because he was a landholder, as aforesaid; that the report of the said chosen freeholders, made in writing on the premises, was returned to this court in the term of July last past, when these applicants objected to the proceedings and certificate of the said freeholders, and obtained a rule of the court for the applicants for the said road to shew cause, on the first day of the next term, why the proceedings, certificates, and return, as well of the said freeholders as of the said survey- or’s, should not be set aside; that the said rule and the objections to the said return and certificate came on to be argued before this court in term of October last past, when because it appeared to the court, by the evidence produced by those applicants, that the said John P. Vanpelt was a landholder, through whose land the road did run, and was not competent to act, and disqualified to be a chosen freeholder in the premises, but yet did act as aforesaid ; therefore *this court, after due consideration, directed and ordered that the return of the said freeholders should be set aside and holden for nothing; and that those who should think themselves aggrieved by the said road have until the first day of the next term inclusive, to make application for an appointment of freeholders de novo on the same — wherefore the unlersigned, being landholders through whose lauds the said road runs, and former applicants for freeholders, considering themselves greatly aggrieved by the said road, in conformity to the order of the court, do hereby apply to the said court' to appoint six lawful and impartial chosen freeholders of the said county to -view the said road and make their certificate thereon, according to the act of the legislature in such case made and provided. Dated this twenty-second da.y of January, eighteen hundred and twenty-three.” (Signed by the ten freeholders.)
    Upon this petition, the Court of Common Pleas, in the term of January, 1823, made an order, which, after reciting the foregoing petition, proceeded to appoint six of the chosen freeholders of the county of Monmouth to view the road so as aforesaid returned by the surveyors of the highways, and further to proceed as the law directs.
    In the term of April, 1823, the Court of Common Pleas made the foregoing order : — “ It appearing to the court that the freeholders appointed in this cause, or a majority of them, have neglected to certify that the same is unnecessary, it is oidered, that the proceedings of the surveyors shall be deemed valid and effectual, and that the clerk of this court shall record the same.”
    A writ of certiorari was afterwards brought to remove the proceedings' into the Supreme Court, and upon the return of the certiorari, the following reasons were filed for setting aside the proceeding of the Common Pleas :—
    
      “ 1. The surveyors who laid out the road departed from the route prescribed to them by the order of the court under which they acted.
    
      “ 2. The return of the surveyors does not designate the landholders over whose land the road is laid.
    “ 3. In the term of April, 1822, the surveyors returned their report laying ont the said road; and one Tunis G. Vanderveer, a landholder interested in the premises, having presented to the court an application, in writing, requesting the said court to appoint *six of the chosen freeholders of the said county to view the said road, according to the provision of the act of the legislature in this case made and provided, the said Court of Common Pleas of the county of Monmouth did. at the said term, nominate and appoint six of the chosen freeholders of the said county, in pursuance of the said application; but, in making the said appointment, the said court did appoint one John P. Vanpelt, one of the chosen freeholders of the township of Middletown, to be one of the said chosen freeholders, although the said John P. Vanpelt was a person over whose land the said road was laid out, and was interested therein, contrary to the express provision of the said act; and the said Vanpelt took upon himself the burden of the said appointment, acted as such freeholder, advocated and voted for the said road among the other freeholders, but did not sign the return of the road, merely because he well knew that he was an unlawful freeholder.
    “ 4. When the proceedings and return of the said freeholders were returned to the said court, and a motion was made to sot aside as well the said report of the said freeholders as the return of the said surveyors, the said court did set aside the report of the said freeholders, but refused to set aside the return of the said surveyors; but instead thereof did, in the term of October, eighteen hundred and twenty-two, proceed to appoint six other freeholders to view the said road — whereas the said second appointment was void, not authorized by the act of the legislature, and merely delusive.
    “ 5. Only four of the second set of freeholders appointed by the court attended, and those four were equally divided, and made no report nor return to the said court of their proceedings, by means of all which the landholders who considered themselves injured by the road have been deprived of all benefit of the tribunal of freeholders created by the said act for their protection.
    
      “ 6.- Lines of the survey of the said road will not cover the road as actually laid out and marked.
    “ 7. Because all the proceedings of the said court, subsequent to the appointment of surveyors, were unwarranted by the act of the legislature, irregular and void.”
    A rule of this court having been obtained to take affidavits to prove the facts alleged in the sixth reason assigned for setting *aside the proceeding, the following were the material facts which the affidavits established :■ — '“that two respectable surveyors run out the road laid out by the surveyors of the highways of the county of Monmouth, from the bridge near the court house to the white oak tree near Middletown Point; and that in running the said road the two surveyors took the courses and distances from the return of said road, as laid out by the said surveyors of the highways, and deposited in the clerk’s office of the county of Monmouth; and that on the first course from said bridge to the cedar tree, called for in said survey, they found a variance of sixty-three links; that from the said cedar tree, running on the second course, they struck Hay's barn, distant about sixty-three links from where a stake was said to stand (but where none appeared); find from thence running the third course, calling for Buck’s shed, they came between the shed and blacksmith’s shop, and the distance fell short one chain ; that the fourth, fifth, sixth and,seventh courses were much the same as had been run by the former surveyors ; that the eighth course, calling for a stump in the road near David Honce’s, fell short five chains, fifteen links, from where it was stated in the return of the surveyors; that from the shed at Buck’s they run without any monument, only noticing' the distance from said stump near Honce’s, till they came to the course calling for a white oak tree near Col. Schenck’s, near Middletown Point; and that where the courses and distances ended they saw no monument, but found the white oak tree bore a north course, three degrees and forty-five minutes east, distant nine chains, fifty-seven links from where the courses and length of chain run out.”
    
      _H. Stockton, for tho prosecutor of the certiorari,
    
    and in support of tho reasons assigned for setting the proceedings aside, stated — that the object of the prosecutor was to reverse and vacate the proceedings of the Court of Common Pleas of the county of Monmouth, and the return of the surveyors of a road from Freehold to Middletown Point; and from tho return of the writ and affidavits taken in the cause, he relied on the following grounds: — 1. The application lor the road was for a straight road from the points of beginning and termination, or as nearly so as could be from the nature of the ground and other general considerations of a public nature. Tho appointment pursued the *application, and only authorized tho laying out of such a road. This was the only kind of road wanted ; there had always been an ancient road, the only objection to which was, that it was not straight, and therefore longer than necessary. But it appeared by the map and affidavits, that surveyors had departed from this fundamental direction, and had laid out a road far less straight, and much longer than the nature of the ground would have permitted, merely on private rcsaons of accommodation to some of the landholders.
    2. The survey, map, and return of the road does not state, as the statute requires, the most important improvements over which the road runs; particularly they do not give the names of the landholders — and this being a thickly settled agricultural district, there were no other improvements but hue farms, the owners of which should have been designated on the map; that in consequence of this neglect, one of the landholders who was in favor of this road had been appointed a freeholder to review it, in direct opposition to the act, which provides that no owner shall bo appointed a freeholder.
    3. That the road had been so incorrectly run out and surveyed that the course and distance, as given on the return of the surveyors, varied most importantly from the road as marked out and staked, so that if the course and distance in the return was run from station to station it did not in many parts cover the road as actually marked out. This was fully proved by the affidavits. The road had been surveyed three times since the return, and on such surveys had been found to be most substantially incorrect: such a road was not authorized by the act of the legislature, and if established would hereafter be the cause of many disputes; it ought, therefore, now to be corrected, before the landholders had been put to the trouble and expense of laying open their farms and removing their fences. 'The statute is express in its directions in this particular. Lev. Laws 61V, see. 5.
    4. The landholders opposed to the road had been deprived of the great privilege of appeal to the freeholders, by the act of the court in appointing John P. Vanpelt, one of the landholders, a freeholder to review the road, upon which objection the facts appeared to be; that upon the return of the surveyors to April term, 1822, the landholders filed a caveat against recording the *road, and applied for the appointment of six freeholders, according to the act of the legislature. The court, not having any materials to know over whose land the road ran, appointed John P. Van-pelt, one of the chosen freeholders of Middletown, as one of the six. He was a landholder over whose laud the road ran, and was favorable to it; he joined the other five in the view, voted in favor of the road, but declined signing the certificate because he was a landholder. A certificate was returned by the other five freeholdors, in favor of the road, to July term, 1822, when the opposers of the road moved the county court to set aside the certificate of the freeholders, and also the return of the surveyors; because the court had, contrary to the express provision of the act, appointed an interested landholder as a freeholder, who had acted as such throughout, and by his influence and vote procured a favorable certificate from the freeholders. But the court, in October term, 1822, after hearing an argument, refused to set aside the return of the surveyors; but, instead thereof, set aside the certificate of the freeholders, and appointed a new set of freeholders to act again in the premises. Only four of this new appointment met, and they were equally divided, and made no certificate; upon which the court ordered the return of the surveyors to be recorded, and the road, as laid out by them, to be established. It was urged, that the first appointment of freeholders was illegal, being in opposition to an express statute provision. Vanpelt was incapacitated by' the statute; — as to him, it was a void appointment. The appointment, then, was of five, not of six freeholders; that this could not be remedied by a new appointment two terms after the return of the surveyors; that the appointment must be made at the term to which the return of the surveyors is made; that the Court of Common Pleas had no jurisdiction to make an appointment after that term. The second appointment, then, was void; it was illusory altogether — only four of the last set could be got to attend, and they were equally divided; so that the persons opposing the road had been deprived altogether of the benefit of a most important tribunal, raised for their protection; that the Court of Oomman Pleas, under such circumstances, ought to have set aside all the proceedings; and, having refused so to do, this court is bound to do what the court below should have done. The road act, it is true, invests the surveyors and freeholders *with great powers, and subjects them to little control; the remedy of an aggrieved party is very narrow whore the statute is strictly pursued; but where there is a departure from its provisions, either in the surveyors, freeholders, or the county court, there is a want of authority, and the power and right of this court to see that the statute is properly executed, and in such cases to give remedy, cannot be doubted.
    
      Wall, contra.
   Kirkpatrick, C. J.

The material facts appearing upon the return and the affidavits accompanying the same, ar^ these :

In January term, 1822, application was made to the Court of Common Pleas of the county of Monmouth for the appointment of six surveyors to lay out a road from Freehold, in the said county, to Middletown, describing particularly the beginning and the ending of the same; and six surveyors were accordingly appointed in due form of law.

In April term, 1822, a return of the said road having been previously made by the said surveyors, and a caveat entered by the prosecutor, six freeholders were appointed by tlie court to view the said road, and to certify whether they believed the same to be necessary or unnecessary; and of these freeholders one John O. Vanpelt, through whose land the said road did run, was one.

In July term, 1822, the majority of the said six freeholders certified to the court, that they believed the road to be necessary. But inasmuch as the said John C. Vanpelt, through whose land the same did run, was one of the said six freeholders, and, with the five others, did actually proceed to view, deliberate and advise touching the same, though he did not sign the certificate, the court set aside their said appointment of freeholders as incautiously made, and the proceedings and certificate by them had and returned, as unlawful, inoperative and-void.

In October term, 1822, the court appointed six other freeholders to view the same road, and to certify, &c.; and upon the coming in of their certificate in favor of the road, at the succeeding term, they caused the return to be recorded.

There were also affidavits satisfactorily proving that there was great inaccuracy in the return itself, both in courses and distances; in some cases running wide of the monument described, *and in some others falling short of it by many chains; so that tho road could not be opened with any satisfactory degree of certainty; nor if opened could it be maintained for any length of time, there being no permanent monuments intermediate between the beginning and the end, by which the several reaches could be governed.

Upon this state of the case, I am of opinion, that though the proceedings and certificate of these freeholders are not subject to be reviewed by this court upon certiorari, yet that the proceeding of the court below in the appointment of such freeholders, and their judgment upon such certificate, are subject to such review ; and that this has been the uniform construction of this court ever since the passing of this act.

The design of the act undoubtedly is, to facilitate the laying out of public roads, and in so doing to attain the greatest possible public convenience with the least possible private injury. Unfortunately it is so incautiously drawn, and the terms of it so injudiciously chosen, that it is extremely difficult, if not wholly impossible, to carry this design into full effect.

It was intended that mere informalities and irregularities, not touching the substance of the thing, should not stand in the way of a fair execution of the law. But, in order to express this, terms are used which, in their strict sense, would not only be contradictory to one another, but also subversive of the whole scope of the act itself. It is said, for instance, in the seventh section, that the Court of Common Pleas shall not set aside the proceedings of the surveyors for illegality or irregularity. Now suppose the surveyors were to proceed without any proof being made to them, that advertisements of their meeting had been made and set up according to law; suppose they were to make their return without a map or draught; or without any courses and distances; or without date, or, tho time of opening the road; or other material thing which the law expressly requires; or suppose, in this case, their courses and distances would have carried them to Squankum instead of Middletown ;. or that they had laid the road twelve rods wide instead of four; can it be believed that it was the intention of the law makers that such a return should be recorded, or such a road opened ? Such a construction would be nullifying at one stroke every provision of the law. The term illegality, therefore, in this place, must *necessarily be restrained in its general sense, and be taken to mean illegality in matter of form only, and not in matter of substance.

Again, it is said, in the same section, that the certificate and proceedings of the freeholders to be appointed upon caveat filed and entered shall be binding and conclusive in all cases, and shall not be subject to appeal or certiorari, or •to be set aside for lack of form; and further, that if the said freeholders should neglect to certify that the road is unnecessary, or should be equally divided in opinion, then their proceedings shall be valid, and the court shall order the return to be recorded.

It has been supposed by some, and made a rule of practice in some of the courts, that these words preclude all manner of inquiry touching the certificate and proceedings of these freeholders, and that unless they certify that the road is unnecessary, let their course of conduct be what it may, let them be sworn or not sworn, let them view or not view, certify or not certify, let their courses and distances lead to ■Squankum or Middletown, and their road be twelve rods wide or one rod wide, the court must order the return to be recorded, ánd the road must be opened. But I apprehend this is not so.

I take the meaning of the act to be, that this certificate and these proceedings of the freeholders shall not be subject to certiorari at all, that being a tedious and expensive remedy; that they shall not be subject to be set aside, even in the same court, for lack of form only; but that for matter of substance they may be set aside, as in all other cases of a similar nature. In this case, the court below gave the words that construction, and for matter of substance, that is, because one of the freeholders appointed was an owner of the land through which the road ran, did set aside the certificate and proceedings of the freeholders first appointed. In this, in my opinion, they pursued their authority, they did what it was right and incumbent upon them to do. It would be an absurdity to say, that the law will compel a court of justice to carry into effect the proceedings of freeholders which are directly subversive of the very law they are appointed to execute. If the court below had not set aside this first appointment of freeholders and the certificate and proceedings by them had and made, this court, upon certiorari, would have certainly done it for them.

*But having done this, that court had executed their authority; they had done all that the act authorized them to do under such circumstances; they could not take one step farther. The application for freeholders must, by the express words of the act, be made at the term succeeding the entering of the caveat, and the court must, during the term to which the application is made, appoint the freeholders {Rev. Laws 648, sec. 7); and here, upon this subject, their power closes. They have no authority to appoint at any other term or time; they have no authority to appoint others if these refuse; so if the first appointment be set aside for irregularity or want of caution, as was done in this case, or if the certificate and proceedings of those appointed, when returned, be set aside for error or mistake in matter of substance, as well they may, the court can neither make a new appointment nor give time till another term to correct the error or mistake. The act has undertaken positively to prescribe the time when each step in this proceeding shall be had, and we cannot enlarge it.

It is greatly to be regretted, indeed, that in creating summary jurisdictions of this kind, the legislature should think it necessary to go so far into detail, and to prescribe so absolutely the modes and forms and times of proceeding,, without leaving discretionary power to the judicial tribunal^ to change, and alter and extend them according to circumstances. In the execution of this very act, how often, how very often, have proceedings been set aside, after great labor and expense, for failures which it was not practicable, in the ordinary course of things to prevent, and which yet had no bearing upon the substance of the thing? This very case might be given as one example of it. But the court cannot change the law. The legislature had a right to prescribe the time of the appointment of freeholders, and they have done it in absolute terms. An appointment, therefore, at any other time is wholly without authority, and void.

It has been said, that this second appointment was made upon the motion, and of course by the consent of this prosecutor ; but it must be remembered that consent can never give jurisdiction.

Upon the whole, then, I am of opinion that the proceeding of the court below in the appointment of freeholders in the term of Oct. 1822, and in making an order to record the return of the road in the term of Jan. 1823, upon their certificate, as well as *the record of that return, made in pursuance of that order, be vacated, set aside, and for nothing holden.

Rossell, J.,

concurred in setting aside the proceedings, upon the^ ground, that the vaxiance in the coux’ses and distances from the monuments given was such, that the road never could be opened for uncertainty.

Eokd, J., thought that the proceedings were sufficiently regular, and that the first freeholders not having certified that the road was unnecessary, the return becaxixe of itself a matter of record, and the road laid out a lawful highway.  