¶1The opinion of the court was delivered by
¶2The only question upon the record is, the admissibility of the evidence mentioned in the defendant’s bill of exceptions. If we were to judge of that evidence by what is said of it in the counter statement, we might perhaps think it was_ properly rejected, but as the very purpose of a bill of exceptions is, to certify us of the evidence in respect of which the judgment of the court is pronounced, we consider ourselves bound to take it as it stands in the bill, and not as it is described outside of the bill.
¶3Sued for obstructing a public road, the defendant made a written offer, which may be reduced to the following analysis:—
*1141st. That the surveyed line of the public road in question, does not run upon the road obstructed.
2d. That it does run along what is called the old road — a highway opened and used 15 years — parallel and adjacent to the obstructed road.
Bd. That the said old road is still open, passable, and convenient.
4th. That the road complained of as obstructed, was opened and made by the path-master in 1852, without authority of law.
¶4Now it may be very safely affirmed, that the “public road or highway,” which the Act of Assembly was designed to protect from obstruction, was that which had been surveyed, laid out, opened, and used, and not that which the path-master had, of his own motion, opened alongside of it.
¶5He had no power to change the route of the road, even if it was wrong; 1 Barr 307; 9 Harris 322; 5 Casey 15; much less if it was right, as the offer implies that it was. The statutory penalty does not attach to the road, which, without authority of law, he substituted for that which the law had built.
¶6The offer was competent, and had the proof come up to it, the defence would be complete.
¶7The judgment is reversed, and a venire facias de novo is awarded.