#### Matter of Public Road in Middlesex and Burlington. *(a)*

AT the preceding term, upon proper application to the court, surveyors of the highways had been appointed to lay out a road in the counties of *Middlesex*and *Burlington.*They acted under the appointment, and made return to this term.

*Ewing,*

on behalf of certain landholders, now moved to set aside the return, and filed a number of reasons, founded upon the appointment of the surveyors and their mode of executing their duties. As the court had reference to only one of the reasons, *in the opinion delivered, it is sufficient to state it, without repeating the rest. This reason was, because *George Bnowhill,*one of the persons appointed to lay out this road, had not subscribed the oath of office, and filed it with the clerk of the township, and was therefore not a lawful surveyor of the highways. It appeared upon the argument, that *George Sibowhill*had been elected a surveyor of the highways, and had been sworn before a justice of the peace in the presence of the township clerk; but that he had not subscribed the oath, nor had it been filed. He acted in the office for that year, and no other was chosen in his stead. He did not appear at the meeting of the surveyors, to lay out this road, but it was laid out and the return made, by four others of the six appointed by the court.

*456*Ewing*

insisted that the explicit wording of our statute, 284, secs. 19, 20, 21, 22, and the decisions of this court, expressly require, that the six persons appointed, should he surveyors of the highways, who had complied with all the provisions of the law; that if any one is appointed who has not taken, subscribed, and filed the oath of office with the clerk of the township, he is not legally a surveyor, nor can any act performed by him, be supported and sanctioned by the court.

*Wall*in answer, urged:

that an officer *de facto*was one coming in by colour of election,' and that the acts of such officer were good and valid, so far as the public and third persons were concerned; that this had been the uniform course of decision, especially under the test acts, where though the office was declared vacant, the acts themselves were good. 16 *Vin.*114. 5 *Bac.*188, 190, tit. *Officer. SILeeb.*606, 665, 682, 721. *Oro. Eliz.*533, 699, 34. *Oro. Jac.*552. 2 *Lev.*242, 184. *Salk.*96. 2 *Mod.*193. 10 *Mod.*185. *Ld. Ray.*299. Such too had been the decisions under the statute of *New-York,*on the same subject of roads; and the only difference between it and ours was, that under that, the justice was to transmit the oath to be filed ; under- ours, the surveyor himself was to do it. *John.*549. 9 *John.*135.

(a)

**Affirmed on error, *2 South. 862.*

By the Court.

Under our road act, we look into the proceedings of the courts, and adjudge upon them, but not into the irregularity or illegality of the proceedings of the surveyors. The * court to whom the application is made, is directed to appoint *six*surveyors of the highways, to lay out the road. *Bloom.*238. In *Pat.*285-6-7, the persons appointed to be surveyors in the several townships, are directed, within six, days to take and subscribe the oath of office, and within six more, to transmit or deliver it to the clerk of the township, who shall file it; and if this oath be not taken and subscribed, or transmitted, or delivered to the clerk within the time prescribed ; the neglect shall be deemed a refusal to serve in *457such office, (a) The person refusing is not an officer. When the court appoint .such an one, it is imposed they do not appoint six surveyors. It is however tended that such a man shall be considered an officer *de jado;*and his acts, in which the public is interested, be valid, and there are many sayings in the *English*books about officers who have not taken the oaths under the test acts; which seem to support the position. But the sources from wdience the reasoning is drawn, is not calculated to constrain the assent of this court. It is in itself unsatisfactory, and completely overrules the express directions of the legislature.

Let the return be set aside.

(a)

*Fisher vs. Allen, 3 Hal. 301. State vs. Davis, 1 Gr. 10. State vs. Barnes, 1 Gr. 268. State vs. Lawrence, 2 South. 850. State vs. Burnet, 2 Gr. 385. State vs. Ayres, 3 Gr. 479. State vs. Northrop, 3 Har. 271. State vs. Shreve, ante 297. State vs. Willingborough, Coxe 128. Hoagland vs. Culvert, Spen. 389. State vs. Hutchinson, 5 Hal. 242. State vs. Green, 3 Gr. 89.*Acts of 1870—10.