#### The People on the Relation of Seth Holcomb *v.*The Township Board of Lowell.

A jury was summoned on the warrant of a justice to determine tlie necessity of taking the relator’s lands for a liigliway, and to assess liis damages. Tlie jury *145found tlie taking necessary, and assessed tlie damages, and their finding was filed in the town clerk’s office, but not certified by the justice as required by law. The amount of tlie damages was levied and collected by tax, and the road opened. It was *held,*that the town could not resist the payment of the damages to the relator on the ground that the justice had failed to certify the finding.

There was no law in this State in 1857 under which a highway could be legally laid out through condemnation of the land to be taken therefor. And therefore township authorities cannot refuse to make payment for lands taken for a highway in 1859 on the ground that a road was laid out over the same line in 1857.

*Heard January 15th.*

*Decided January 22d.*

Application for a mandamus.

The relator set forth in his affidavit, that on January 3, 1859, on the application of one of the commissioners of highways of Lowell, to Robert Hunter, a Justice of the Peace, a jury was summoned on the warrant of said Justice, to determine the necessity of taking certain lands of the relator in that town for a highway, and to assess his damages in oonsequence of such taking: that said jury determined that it was necessary to take such lands, and assessed the relator’s damages at two hundred and sixty dollars, and that their finding was duly certified to by the Justice, and filed in the office of the township clerk; that thereupon, in obedience to the requirement of the commissioners of highways, the relator caused the road to be opened through his lands, and the commissioners caused the same to be worked and used as a highway: that the amount of his said taxes has been levied and collected by tax in said town, but that the township board refused to deliver to him a warrant on the township Treasurer for the amount. And he prays a mandamus to compel them to issue their order therefor.

An alternative mandamus having been issued, the township board returned as cause, that the finding of the jury had never been certified to by the Justice as required by law; and further that, on August 3, 1857, a public highway was duly laid out over the same line described by the applicant, “and all necessary and legal means, were taken to vest the use of said lands in the said township of Lowell, for the purposes of a public highway, and from *146thence to the present time in virtue thereof the same has been a public highway; the same never having been taken up, altered or discontinued, by any person authorized by law so to do.”

*E. 8.*Eggleston, for the relator.

*8. G.*Ghamplin, for the township.

Martin Ch. J.:

The relator in his petition for the' writ of mandamus, clearly made a case entitling him to it. Has this been overthrown by the cause shown against it by the respondents? We think not. No question is made by them of the regularity of the proceedings to condemn the land, and no issue is made upon any material point. They neither deny that the land of the relator was condemned, nor do they insist upon any fraud or irregularity in the proceedings taken to condemn it. They do not deny but that the damages, to compel the payment of which this writ is prayed, were awarded, nor but that the award and finding of the jury were returned into the Town Clerk’s office, and the amount of such award collected by tax, and deposited in the township Treasury, awaiting their order to be paid over to the relator. Upon all these points they are either silent or their answer is evasive. But they insist, 1st. upon the technical ground, that the award of the jury was not certified by the Justice before its return into the Town Clerk’s office, and 2d, that a road on the same land had been laid out in the year 1857, as cause why they should not “pay the award.”

As to the first ground, although it was the duty of the magistrate to certify the award, yet so long as it appears that such award was made and filed in the proper office, recognized and acted upon by the proper township officers, the land occupied for the purposes of a road, and a tax levied and collected for the payment of the damages awarded, *147I can not well see upon§ wbat equitable or legal grounds, tbe -town can bait here, and refuse to take tbe further and last step — tbe payment of .such sum — because such certificate is wanting. It appears to me that tbe respondents are estopped, from denying tbe validity of tbe award, or of tbe sufficiency of tbe return, after such action. Had tbe town refused to occupy tbe land, tbe case might be different, but having taken possession of it under tbe condemnation of tbe jury, and provided a fund for payment for it, tbe board should be required to issue tbe order for-such payment. But however this may be — and my brethren •who concur with me in other respects, do' not wish to be understood as expressing any opinion upon this point — we are agreed that the answer of tbe respondents is immaterial and irrelevant, and furnishes no sufficient cause why tbe writ should not be issued. Tbe duty of tbe jury is one prescribed by tbe Constitution, and when it has been duly executed, tbe rights of tbe relator, and of tbe township, are perfected, and their duties and liabilities established. Tbe certificate, of tbe Justice has not tbe character of an adjudiicaton — it determines no right, nor does it confer any power. It is simply an authentication of tbe return of tbe jury; a ministerial act, the omission of which can not invalidate tbe verdict of tbe jury, nor impair tbe rights of tbe relator. Suppose tbe death of tbe magistrate should occur after tbe return of tbe award to him, and before be could certify and file it in tbe Town Clerk’s office — wbat would be tbe rights and liabilities of parties ? Could it be claimed that by such accident tbe whole proceeding would be rendered void? I can not think so. In *Overall v. Pero, 7 Mich.*315, we held that tbe entry of a verdict of a jury, by a Justice of tbe Peace, was sufficient to authorize the issue of an execution, notwithstanding the want of a final judgment entry. This was so held upon the ground that such entry, although in a judicial proceeding, was required as a ministerial and not as a judicial act, and its neglect would not deprive tbe *148party entitled to the execution, of his rights, which had been fully adjudicated by the jury. The same principle was again asserted in *Hickey v.*Hinsdale, 8 *Mich.*267; and if in such cases the statute can he held to he directory, I can see no valid reason why the one under consideration should not he also, and for the much stronger reason that the magistrate in this case acts ministerially from first to last, and is without any judicial power or discretion. If such he the case, no right determined by the action of the jury can he impaired by this default of the magistrate.

The allegation that a road had been laid out over the same land in 1857, is no answer, as no law existed in that year under which it could have *legally*been done through condemnation of the land to he taken: and it was this fact, probably, which led to the subsequent laying out and establishing the present road.

Mandamus awarded.

Manning and Campbell JJ. concurred,

Christiancy J. concurred in the result.