
    Thompson vs. Crabb.
    June 26.
    Error to the Henry Circuit; Henry Davidge, Judge.
    
      Roads, discontinuance and alteration of.
    
    motion.
    _ Case 66.
    which 'to-8’ vides for™he discontinuance °ot8T<1<l 'to* oase'sof ffZ-° tcratiomoi 
      roads. There distinction^6 hetwienthe alteration and discontinuance' The public beknowVby regarding the poipt» at barin'a'nd^ terminate, according to ^establish ment; and when »o con-pdered, there in distinguishing between the alteration tmiiaáce°ofa
   Judge Underwood

delivered the opinion of the Court.

It seems from the record that the cou»? tj court oi II mry,at the instance of Thompson, had changed a part of the public road leading from “towards Frankfort to Westport.” Crabb desiring to have that part of the road'so changed, re-established upon the same ground from which it had been removed, applied to the county court for an order appointing viewers. Such proceedings were had, that the county court finally re-established or altered the road, so as to throw it upon the ground it originally occupied.

To reverse the final decision of the county court,' Thompson prosecutes a writ of error. The order appointing the viewers, and their report, make out such a case as warranted the court to alter the road, and re-establish it upon the ground it formerly occupied. The order in the language of the law, directed the viewers to report truly and impartially the conveniences and inconveniences which would result, as well to the public as to individuals; and the report declares that the proposed alteration would be of advantage to the public and neighborhood, and of no disadvantage to any individual, and that the road altered as proposed, will benigherand better. So far, there does not appear to us, to be any defect. It is contended, however, that the proceeding was erroneous, because it did not conform to the provisions of the act of 1818, II Digest, 1101, providing for the discontinuance of established roads.- That act does not apply to the present case. There is a palpable distinction between the alteration and the discontinue anee of a public highway. In the one case, the road ‘s hept up, leading to the principal points, to the .court house, ware house, &c. although it may be 'brown bv alterations, on different ground from that on R was’ at located; in the other, itis abolished altogether, the hands are exonerated from keeping it in repair, and it may he stopped up with impunity. The case before us, is one for the alteration, and no1- the discontinuance of a road. The public roads of the several counties, are to be known by regarding the points at which they start, and those where they terminate, according to the original establishment, So considered, there can he no difficulty in distinguishing between the alteration and the discontinuance of a road, either in whole-or part.

It is assigned for error, (hat the viewers were not sworn as required by law, before they examined the ground, or before they made their report, ft appears from the certificate of the justice who administered the oath co Bohannon, one of the viewers, that it was not done until the 13th- of August, 1829, on the day before the court had received the report and acted upon it, by ordering a summons against Thompson, through whose land the road as proposed to be changed would pass. To receive a report from viewers not qualified by taking the oaths prescribed by law, and acting upon it, was clearly erroneous, In strict propriety, the viewers should be sworn before going on the ground. If this is not done, they should at least verify their report by oath before the court art upon if. But upon á careful amination of the bill of exceptions, we cannot find that the certificate of (he justice, shewing the date Bohannon’s qualifications has been made a part of the record. We therefore, think the certificate should be disregarded, which leave the statement of the viewers in their report, that they were sworn before acting the evidence of their qualification on which the court could legitimately act. We perceive no error in the proceedings of the sheriff under the writ of ad quod damnum.

It is lastly assigned for error, that the court did not adjudge to Thompson the damages assessed in his favor by the inquest. The case of Cashweller’s heirs vs. M’Ilvoy, I Mar. 84, is a sufficient answer to this objection.

The order of the county court establishing the proposed alteration of the road, made on the 3rd Nov, 3819, is affirmed.

The defendant in error must recover his costs,

Petition.

On the following petition, filed by the counsel of Thomp-’ son, a re-hearing mas granted.

The report of‘the viewers, commences in these words, “agreeably toan order of the comity court herezditk reported, the Úndcrsigned, &c.” That order of the court zoos reported, and is found in the record, with a certificate of a justice of the peace endorsed upon it, that ho administered the oath to lBuckmcn <.•, one of the viewers,one day after the date of tno report, and six days after it appears he had performed the. duty, in the bill of exceptions, it is said, ‘-.he attorney for Crab!), read as evidence, a writ of i%od quod damnum,” inquest, and sheriff’s return (here insert them,) a* well as an order appointing viewers, report, order to summon Thompson, (hero insert all proceedings;”) and (he clerk says, “see whole record for all .proceedings.” And in the transcript <5f the record is.contained the certificate of the justice of the peace, of the qualification of each of ttie viewers, among which is that of the oath having been taken by Buckhannon as above stated.

On this stale of case, it is respectfully suggested to the court, that it may be worthy of reconsideration, whether these affidavits do not constitute a part of the record of the case. The copy of the order sent out to the viewers, is reported back by them, and is, therefore, unquestionably partof ffieir report. And are not the certificates of the affidavits endorsed upon it,a partof their report? And a part of the proceedings which are referred to in the bill of exceptions, by the comprehensive terms hero “insert all proceedings,” for which the clerk has referred to the rvhole record in which these affidavits are contained? ft would seem, th;ff under such circumstances, these certificates of the justices cannot escape the judicial notice of this court. And if noticed, they prove that the recital in the report, that the viewers had been first duly sworn, was incorrect. But there are authorities which seem to be directly in point. In the case of Elliott vs. Lewis, reported in I Marshall, 452, the certificate of the affidavits is endorsed on the report, but because it bears date three days nf-ter the report is datedr the order establishing the road is reversed. In the case of Breceknridge, &c. vs. Ward, I Mon. 56, there was no bill of exceptions whatever, and the justice’s certificate of the affidavit of the viewers could have been considered a part of the record only, in consequence of its being endorsed on the copy of the orderof court, appointing the viewers, which copy of the order, the report says, is hereto annexed. And yet, this court noticed the certificate, and find that “in fact the way must have been viewed by the commissioners, not as the law requires, after they were sworn, but previous thereto,” and adjudged that the order establishing the wav^ must therefore, be reversed; and in the case of Pollard vs. Ferguson, the court take judicial notice of the affidavit, without its being made part of a bill of exceptions, or even a copy of the order of court referred to in the report, and evidently consider it a part -of the record.

Petition,

This is the language ofthe court. “It is true that a certificate from a justice of the peace appears in the .record, that they were sworn by him.”

The records of the above cases, found in the clerk’s office, are necessary to be examined to understand their application. They have been looked into by the counsel, and the court is respectfully requested to have them, before' them, if they deem the subject worthy such an attention.

I can find no case where it is said, the recital of the commissioners, that they had been sworn, is sufficient evidence of the fact. It cannot be taken, that this recital is on oath, for this would be making a-man first prove by his mere declaration, he was on oath, then afterwards, on that fact, give to his prior declaration, the effect of testimony on oath. There is no competent testimony to begin upon. Nothing to infer from that is competent. It would be just as well to presume the duty of the commissioners had been faithfully performed on their mere declarations, as to take their statement as proof that they had been sworn. They were not appointed to rep. rt that they took an oath, but to view the road after being sworn. So that their duty did not commence until they were sworn. Not until afterthey had take» the oath could they do any thing?

But be this as it may, the fact is here shewn, that the oath was not taken by Bohannon as recited, but after lie had performed the duty, which all the cases prove was too late. There are other points deemed worthy of farther decision, but they will not be •pressed at this time.

Opinion delivered on the. \lth of June, 1831, after rehearing.

Chief Justice Robertson,

delivered the opinion of the court.

The authorities cited in the petition, are inapplicable. The bill of exceptions does not sheyr that the certificates of the magistrate were read, or in any way used or relied on in the county court. •But even if they had been used on the trial, the consequence assumed by the petition would not follow. The report of the commissioners stales that they were 'sworn before they viewed the way. That statement should be accredited, and was sufficient evidence of the fact, unless, by stronger evidence, it had been falsified. We would not admit that a certificate of a justice should be entitled to more credit than the report of the viewers. He might be mistaken as to date. 'They could not fail to know whether they had been «worn before or after they had viewed the way. But the magistrate’s certificate does not shew that •any one of the commissioners was not sworn- until after the view. The report was received by. the' county court on the 10th of August, 1829. Certificates by a justice, now endorsed on the order appointing the viewers, slate that two of them were sworn before the -5th of August, (the day on which they viewed the proposed way,) and that one of them was sworn on the “lid” of August, 1829. It is doubtful whether the figures in this last certificate were intended for the 2nd or for the 11th; and this court could ntít determine that the 11th was intand-cd. But if there could be no doubt that the llth is the day certified, then there is a strong probality Shat there is a mistake in the date. The order on which the certificate is endorsed, was returned with the report to the county court. It is not probable, therefore, that the viewer was sworn after the court had received and acted on the report; and certainly it is not to be presumed that the justice would have access to the order, and would endorse a certificate upon it after it had been deposited with the clerk. If there be a mistake in the date of the certificate, this court cannot decide that the oath was not administered until after the 5th of August, 1829, even if the certificate had been the only evidence fending to shew that an oath had been administered. Allowing the certificate to have its utmost effect, surely it is not sufficient to convicf the three viewers of wantonly making a false report.

Monroe, for plaintiff; Richardson, for defendant.

Wherefore, a majority of the court, (Judge Underwood dissenting,) are of opinion that the former judgment of this court remain Unchanged.  