By the Court,
Savage, Ch. J.The justice was right in the opinion he pronounced, that after issuing the precept for summoning the jury he had no duty to perform on the inquiry except to swear the jury and the witnesses. In a proceeding under this statute he does not act judicially; he has no judgment to render, nor order of any kind to enter; if the costs are not paid in ten days, it is his duty to issue a warrant, not an execution, for their collection. He is of course to tax the costs, but he has not the custody of the certificate of the finding of the jury ; and it seems to me he has no right to decide upon the qualifications of the jurors.
There is no judgment, order or proceeding of the justice to be affirmed or reversed. He did not hold a court under the fifty dollar act; he could exercise no powers but such as are given him by the statute relating to highways, under which the proceeding in question was had. The constable seems to have the selection of the jury, and the jury so se'ected, after hearing the proofs and allegations of the parties, are to make a certificate, which is to determine the fact of encroachment. The justice has no voice in the matter; he is not *471even to record the finding of the jury; he is merely to administer an oath to them, and to swear the witnesses ; and this power might as well have been delegated to any other officer (the town clerk for instance) as to a justice. The statute giving authority to the justice to administer oaths does not confer the right of judgment upon the qualifications of the jurors, and no such powor is given by the statute. I am, therefore, of opinion that the certiorari be dismissed.
Certiorari dismissed.*
Theprovisions of the Revised Statutes, under which these proceedings were had, are the following: By the 103 §of chap. 16, (1 vol. 521,) it is made the duty of the commissioners of highways, where a highway is encroached upon by fences, to order, if they deem it necessary, such fences to be removed. This order must be in writing and signed, and notice in writing must be given to the occupant to remove the fences within 60 days. If the occupant denies the encroachment, the commissioners must apply to a justice of the peace af the county (§ 105) for a precept to a constable to summon 12 freeholders to meet at a certain day and place to inquire into the premises, and notice of such meeting must be given to the commissioners and to the occupant of the land. On the day specified, the jury are to be sworn by the justice, well and truly to inquire whether such encroachment has been made, and by whom. The witnesses produced by either party are also to be sworn by the justice, and the jury are to hear the proofs and allegations of the parties, (§ 106.) If the jury find an encroachment has been made, they are to make and subscribe a certificate in writing of the same, which must be filed in the office of the town clerk. The occupant must remove his fences within 60 days after the filing of the certificate, and pay the costs of the inquiry, which, if not paid within 10 days, the justice is to issue a warrant for the collection thereof, (§ 107.)
At the last August term of this court, an application was made in this case, on the part of the plaintiff, for a rule on the justice to make a further or ad. ditional return to the return already made by him, which was denied by the court substantially for the reasons now assigned on dismissing the certiorari, and that the justice could not be supposed able to make a fuller return.