delivered the opinion of the Court.
If this record showed that this road had been vacated, in the mode provided by the statute, and that the proceeding vacating it was ended and determined, we should not hesitate to reverse this judgment. Such vacation would have been a sufficient excuse tor not obeying the writ. There would have been no road to open. Notwithstanding the mandate of the court, the commissioners would have been trespassers for opening it. The writ of mandamus could not be pleaded in justification of such trespass. But there is nothing in the record to show that the road has been vacated. There is an affidavit copied into the record, stating that fact, but it is not in a bill of exceptions, and is no part of the record. We should have the certificate of the judge that it was read, and that there was no countervailing proof, Then we should be prepared to examine, and say whether the court below decided correctly or not, on the proof. The judgment must be affirmed.
Judgment affirmed.