The opinion of the Court was drawn up by
Tenney J.The title of the plaintiff to the land is not disputed, but the defendant justifies the act complained of as being done in the repair of a town way, which, it is insisted,, was duly and legally located. He introduced the records of the town of Jay by which it appears, that the way was laid out by the selectmen on the 24th of August, 1836, and that a warrant calling a meeting of the town, in which warrant was an article “ to see if the town would accept the location of the way in question,” was dated the 20th of August, 1836 ; and at the meeting held in pursuance of the warrant, on the 12th of September, 1836, “ It was voted to accept the same as laid out by the selectmen.”
By the records, the location by the selectmen was subsequent to the issuing of the warrant calling the town meeting for the approval of the acts of the selectmen. It is well settled, *125in the cases cited for the plaintiff, that the location must precede the warrant. The records do not sustain the defence.
Was the evidence, which the jury were allowed to consider, on the question, whether the warrant was in fact issued before the location, admissible ? We are satisfied, that it was not. The records upon their face are perfect, and nothing can be supplied, which is now wanting. They cannot be controlled by the evidence introduced. They were intended to afford security, which cannot be found in an inferior species of evidence.
Exceptions sustained and a new trial granted.