The counsel in support of the motion for a peremptory mandamus, contends that the return is insufficient;
1. Because, Zaccheus Higby and Zaccheus Higby, junior, are the same person.
2. Because, the relators were commissioners de facto, and their acts, as such, good.
3. Because, the town-clerk is a mere ministerial officer, and has no right to try the validity of the election ®f the commissioners, in this way. :
These objections are well taken. The addition of junior is no part of the name of the commissioner. It is a mere description of the person, and intended only to designate between different persons of the same name. It is a casual and temporary designation. It may exist one day, and cease the next. The question here is, whether the Zaccheus Higby who was elected commissioner, and the Zaccheus Higby who certified the survey, was one and the same person; and the return does not deny that fact, nor aver even an opinion or belief that they were not the same person. The defendant was bound to aver the fact affirmatively and directly, if they were not one and the same person. No issue could be taken *554' upon the return in this respect, and it is essentially bad.
^y^Nor is the allegation material in this case, that the commissioners had not caused a certificate of their oath of office to be filed in the town-clerk’s office. If the " commissioners of highways acted, without taking the oath required by law, they were liable to a penalty; or the town, upon their default in complying with the requisition of the statute, might have proceeded to a new choice of commissioners. But if the-town did not, (and it does not appear that they did in this case,) the subsequent acts of the commissioners, as such, were valid, as far as the rights of third persons and of the public were concerned in them. :i|They were commissioners de facto, since they came to their office by colour of titlej^ and it is a well settled principle of law that the acts of such persons are valid when they concern the public, or the rights of third persons who have an interest in the act done; and this rule is adopted to prevent the failure of justice. The limitation to this rule is as to such acts as are arbitrary and voluntary, and do not affect the public utility*/ The doctrine on this subject is to be found at large, in the case of The King v. Lisle. (Andrews., 163.) It certainly did not lie with the defendant, as a mere ministerial officer, to adjudge the act of the commissioners null. It was his duty to record the paper; valeat quantum valere potest. It was enough for him that those persons had been duly elected commissioners within the year, and were in the actual exercise of the office. It may be that .the oath was duly taken; and that the omission to file the certificate of it was owing to casualty or mistake. The validity of the title of the commissioners to their office must not be determined in this collateral way.
The opinion of the court accordingly is, that the rule for a peremptory mandamus be granted.
, Motion granted®