1. While the protest filed by the defendant in error to the return of the processioners contained several grounds, only two of them were passed upon by the court below, and the judgment of the court sustaining the protest was based upon those two grounds only: first, “that notice was not served upon protestant ten days before the alleged procession,” as required by law; second, upon the ground that the processioners had not been appointed by the ordinai-y of the county. The truth of both of these grounds was admitted in an agreed statement of facts. Held:
(а) Where the record did not contain a copy of the application for processioning, but the return of the processioners recited that ten days notice, as required by law, had been given to all of the owners of adjoining lands (naming them), and a person not so named filed-a protest to such return, but no evidence was introduced that he was in fact an owner of adjoining land, it was error to sustain the protest on the ground that such protestant had not been notified.
(б) Under the provisions of the act approved December 13, 1871 (Acts . 1871, p. 225), creating a board of commissioners of roads and revenue for the county of Eloyd and other counties, the said board, and not the ordinary of the county, had authority to appoint processioners. (Eish, C. J., and Holden, J., dissent from the ruling made in this headnote.)
2. No traverse of the protest was necessary to put in issue the allegations of the various grounds thereof.
Judgment reversed.
All the Justices concur, except Fish, C, J., and Holden, J., dissenting. IV. M. Henry and F. IF. Copeland, for plaintiff. M. B. Eubanhs, for defendant.