Sage v. Barnes — 9 Johns. 365

Majority

p. 365

Sage against Barnes.

NEW YORK

Oct. 1812.

Headnote

In an action before a justice, for the penalty for obstructing the highway, under the act. (sess. 24. c. 186.) a plea of title riting; and it is sufficient, if the plaintiff produces a copy of the record of the establishment of the road, as a public highway. It is not necessary that he should prove all the proceedings preliminary to the laying road.

IN ERROR on certiorari from amstice s court. Barnes brought . . , c, , „ , an action against ¡sage, before the justice, to recover the penalty of 6 dollars, for obstructing the highway, under the 19th section of the act. The parties joined issue, by consent. The defendant alleged that the road in question was a disputed road; that the land was claimed by the defendant, and that there were suits pendIng in a higher court, to try the validity of the road; and contended, therefore, that the justice had no jurisdiction. No plea of tie in writing was interposed by the defendant, nor was any evidence given by him that any action was pending. The justice, therefore, disregarded these allegations; and the obstruction of the road was proved by several witnesses. The plaintiff produced a copy of the record of the road, containing a particular description of it. One witness proved that he had been called to work on the road, and several testified that they had travelled on it, as a public road; and the defendant declared that he had appealed to the judges of the court of common pleas for the improper establishment of the road, who had refused to grant him any redress, The justice, in his return, stated, that it was proved satisfactorily, that the road was established as a public highway, and had been obstructed by the defendant. The defendant interposed no plea of title in writing. He produced the certificate of two attorneys, that a suit was pending in the court of common pleas between the defendant and A. Hotchkiss, in which the validity of the road was called in question ; he also produced a certificate of the clerk of the court to the same effect. The justice gave judgment for the plaintiff, for 5 dollars.

The judgment must be affirmed. If any plea, of title was admissible in this case, no such valid plea was offered. It was necessary that it should have been in writing. The plea, or

p. 366

rather suggestion, that there were other suits pending, in a higher court, to try the validity of the road, was properly rejected. It had neither form nor substance. But the evidence on the trial shows, that such suits were between other parties, and would, in no way, affect the present action. The defendant admitted, on the trial, that he had appealed from the decision of the commissioners of highways, to the judges of the court of common pleas, who had refused to give him relief. It was unnecessary for the plaintiff to show all the preliminary steps to the laying out of the road. It was enough for him to show the record thereof, and that it was opened and used as a public highway.

Judgment affirmed.