By the Court,
Bronson, J.The statute provides, that whenever application shall be made to the commissioners of highways for a private road, they shall summon twelve disinterested freeholders of the town, to meet on a day certain ; of which day, notice shall be given to the owner or occupant *368of the land through which the road is proposed to be laid out. The freeholders, when met and sworn, are to view the land, and determine whether the road is necessary. 1 R. S. 517, § 77, 78. Although there does not seem to be any very good reason for requiring the commissioners themselves to summon the freeholders, instead of calling in the aid of some [ *369 ] officer who usually performs such services, *yeb the law is so written, and it must be obeyed. But there was, I think, a substantial compliance with the requirements of the statute. The freeholders were requested by the commissioners to serve as a jury upon the application. This was a sufficient summoning. Uhe statute does not require the commissioners to issue or have any process—it only requires them to summon the freeholders. The fact that the freeholders had assembled under void process, did not disqualify them for acting when they were afterwards legally requested to do so ; and by requesting them to act, the commissioners signified their approval of the freeholders as fully as they could have done in any other way. The relator had notice, was present, and made no objection. I think the road was well laid out.
Proceedings affirmed.