The district court appears to have proceeded upon the ground, that there was no record of an order establishing the road. But there is nothing, in the act of assembly, which prevents the court from accepting a road tendered by the party; who may, if he thinks proper, waive the usual formalities, and renounce the benefit of the statute. The record shews, that the road was opened and used; that viewers were directed to inspect and report upon it; and that a surveyor was shortly afterwards appointed; all affording irresistible evidence, either that a report was made; or what is more probable, that it was dispensed with, because the road was offered by the owner: And had the order of 1761 recited the transactions, and stated that the appointment of a surveyor was made without waiting for the report, because the proprietor of the land, by petitioning for the road, bad, necessarily, assented to the establishment of it, the appellee would have been estopped from controverting the public right: But it is the same thing, in effect, when it is inferrible from the proceedings, that one or the other must have happened; for then presumption supplies the averment; especially as the welfare of the community requires, that a public easement long sanctioned by the proper authority, and acquiesced in for nearly forty years, should not be disturbed by a rigid, or critical, construction, of the words of an order defective, probably, from the inadvertence of the clerk. To put down a road, under these circumstances, would tend to ensnare third persons, and injure the public interest, upon technical exceptions, not fit to be sustained. Viewing the case, therefore, with that libe*377rality which I apprehend ought to obtain upon such occasions, and thinking that an actual surrender for the use the public should be inferred, I am of opinion, that the judgment of the district court ought to be reversed, and that of the county court affirmed ; particularly when it is considered that many of the public roads, throughout the state, probably stand upon the same footing; and that a contrary decision might be attended with very alarming consequences.