Where the encroachment is not denied, and the commissioners, under the 21st section of the act, make an order to remove it, the just construction of the statute requires that all should confer, and then a majority may act; but where, as in this case, the encroachment is denied, and the fact is to be inquired of by a jury, the commissioners act in the character of informers merely; and the law requires no order, nor any act of the commissioners, after the finding and certificate of the jury. The omission, for sixty days after the inquest, to remove .the encroachment, constituted the offence. The mere complaint to the justice was not such an act as required the united deliberation of all the commissioners; (9 Johns. Rep. 360.;) at least, the omission to hold a joint consultation, in regard to the complaint, will not vitiate the inquest which establishes the fact of encroachment. The complaint was initiatory.
On the second point the justice also decided correctly, in excluding the evidence to contradict the inquisition as to the fact of encroachment. The finding of the jury was conclusive, on this trial, as to that facts The judgment for costs, however, is erroneous ; so that the fjudgment must be reversed, as to costs, and affirmed, as to the penalty recovered.
Judgment accordingly.