¶1We are of the opinion that the demurrer to the two special pleas was properly sustained by the court below. They justify the trespass complained of, under an order issued by the commissioners of the town of Hanover, directing the defendant, G-uptail, who was overseer of highways, to open a public highway on the line between sections 30 and 31, in that town, but they nowhere show that there was a legally laid out highway there. Unless there was such highway there, the commissioners of highways had no authority to order a road to be opened. They had no jurisdiction to act in the premises, and their order to the defendant was a simple nullity, conferring upon him no authority whatever. Only in such a case does the statute authorize them to issue such an order. Upon the argument, an attempt was made to liken this order to a writ issued by a court of justice, which, if regular upon its face, and emanating from a court having authority to issue such writs, is a justification to a ministerial officer who executes it, although in fact it is issued in a case not warranting it. In such a case, the ministerial officer is not bound to go behind the writ and inquire into the regularity of the previous proceedings. Were the cases analagous, the argument would be conclusive; but they are not. The commissioners of highways do not constitute a court in any sense, although some portion of their duties may be of a judicial character. Tet this is so in a very limited sense, and the duty in question was not of that character. Not only the commissioners themselves, but others who would seek a justification under their orders, must take the responsibility of showing that a case existed which justified them in issuing their order.
¶2This the pleas do not show, and the judgment must be affirmed.
¶3Judgment affirmed.