After an application is made to the court, for the appointment of chosen freeholders, to review a road laid out by the surveyors of the highway, the road cannot be recorded, and become a lawful highway, until it is approved by a majority of the chosen freeholders so appointed; which approbation must be certified to the court, under the signature of four of the said chosen freeholders. The fourth section of the supplement to the Road Act, declares in express terms, that the signature of four of the chosen freeholders, shall be requisite to render the return of the road made by the surveyors, valid and effectual. The second section directs the freeholders to certify their approbation to the court, and also directs the coui’t to cause the same to be recorded in the book kept for that purpose, in the office of the clerk of the county.

It appears by the case, that application was made to the court for the appointment of chosen freeholders, and that the court appointed them. It ought further to appear, that *380a majority of the freeholders approved of the laying the road, and that their approbation has been certified to the court, under the signature of four of them; and that the court had ordered that certificate to be recorded. But nothing of this to have been done. The court, on the contrary, appear to have gone on the mistaken notion, that the persons applying for the appointment of the chosen freeholders, were bound to get the freeholders to certify their disapprobation of the road; or that for their default, the return of the surveyors should [*] be recorded, and the road made valid, than which nothing is further than the law. After an appeal is made to the freeholders, there can be no road without their approbation, duly certified. I am, therefore, clearly of opinion, that the defendant below, ought to have been permitted to give this matter in evidence, [595] to show that there was no existing road; and that for this cause, the judgment must be reversed.

Kirkpatrick, C. J., and Rossell, J. — Were of the same opinion.

Judgment reversed.1