The opinion of the court was delivered by
Nevius J.The report of the freeholders is in divers respects erroneous in substance, and is admitted so to be by the counsel of the defendant, and must therefore be set aside. But it is contended, that the return of the surveyors is also defective in substance, and therefore it should also be set aside. Two questions are here presented : 1st. Whether it is competent, for this court, now to inquire into the irregularity of the proceedings of the surveyors, no exception having been taken to them before the court of Common Pleas; and 2d. If such inquiry can now be made, whether the objections urged to the return of the surveyors are valid in law, and will justify this court in setting aside that return ? It does not appear from the papers sent up with this writ, that any exception was taken to the regularity of the proceedings in the application for, or the appointment ox *635retara of, the surveyors, before the court of Common Pleas; or that that court was called upon to make any adjudication upon them. The defendant, having filed his caveat, applied at once for the appointment of freeholders to view the road. I thiuk he is too late now, to-avail himself of such exception, as he urges against the return. But if it were otherwise, I am of opinion, that the objection is not sustained. It is said that there is uncertainty in the beginning and ending points of the road laid out. The application is to lay out a road, beginning at a stake on the east side of the main road, leading from Salem to Penn’s Grove ; thence running in a south-easterly direction through lands of George Dancer about twenty rods, to the north-westerly corner of lands belonging to the applicant, and there to end. The return corresponds with this description, and is sufficiently certain. The proceedings of the freeholders should be set aside and the return of the surveyors recorded. Let such order therefore be entered.
Carpenter J. concurred. Hornblower, C. J., Whitehead and Randolph J. J. did not hear the argument and expressed no opinion.
Disapproved in Suydam v. Hoyt, 1 Dutch. 234; State v. Vandervere, 1 Dutch. 671; Cited in Powell v. Hitchner, 3 Vr. 215; State v. Woodruff, 7 Vr. 205.