sessed to me. For several years before I had charge of the Mundy property I think I done the road work or saw it was done. At the time I got charge of this Mundy land there was not a road fence on the north side of it. I helped Mr. Mundy build a good deal of it. The east 20 of it was fenced, I think. I think there was a pole fence there. It was built right, I think, somewhere near where the fence is now, or where it was when I bought it; I don't know where the line is. We have had it resurveyed since. I think it was not on the line. When I bought it, I supposed that there was a highway there. I treated it as such. I have known that strip between the two fences to be used as a road for the public to travel over ever since I knew the place. It was commons for a good while. Finally, when it was fenced up to a definite line, people could travel between the fences. That quarter line road from the south is a little better than this in some places. That isn't much of a road there. Now the lower parts of them there isn't either of them very good roads. Between Neal's 40 in 21 and the one he recently bought, that is a pretty fair line of road; fairly good road in dry time most any time. It is better than the lower end of the road." * * * * * ** Plaintiff produced evidence tending to show that no work had ever been done upon the road by the public authorities, and that it was not used by the public. The evidence was conflicting, and we think the case was properly one for the jury. Village of Grandville v. Jenison, 84 Mich. 54; Gage v. Township of Pittsfield, 120 Mich. 436. The fact that no part of the highway was opened and worked within four years after its being laid out, as required by section 4063, 2 Comp. Laws, does not prevent the establishment of the highway by user under section 4061. The failure to open and work the road within four years would merely require a user of ten years instead of eight; and it was open to the jury, under the evidence in this case, to find a user much longer than ten years. The evidence is undisputed that no work was done upon the 80-rod strip between the fences, which was obstructed by the cross-fences torn down by defendants; but it is also substantially undisputed that this 80 rods was a reasonably good highway, which did not need to be worked. It is not essential that every part of a highway should be worked in order to evidence the intention of the public authorities to accept and maintain the entire highway. The jury might properly find, under the evidence in this case, that the portions worked were so worked for use in connection with the 80 rods not worked. 3. Plaintiff contends that the court improperly instructed the jury that the burden of proof was upon the plaintiff to show that the highway was not a lawful road. The court said to the jury upon this subject: "Now, upon the part of the plaintiff, who brings the action here and who has the burden of proof, practically, to show that a wrong has been committed against him— the issue becoming one as to whether this was a public and lawful highway-the plaintiff claims that it was not, and that he had a right to inclose the strip of land in front of his two 40's, or dividing his two 40's, and had a right to the exclusive use and control of it. "On the part of the defendant, it is claimed that this is a lawful highway, and, while it is admitted, it is claimed that proceedings were attempted to be taken in 1877 by the commissioner of highways to lay out a highway from the section corner between sections 21 and 28, west to the bay shore, on the section line between sections 21 and 28, while it is admitted that what appears from the record here does not constitute a regular and lawful paper laying out of the highway, it is claimed that as a matter of fact the highway was laid out while the proceedings were irregular and defective, and not complete; that it was as a matter of fact laid out by the commissioner; and that, following that laying out, the road has become a road by user by the public for more than eight, for more than ten years. No request to charge was presented upon this subject, nor was the attention of the court called to the error, if any, in the instruction. In subsequent portions of the charge the court substantially instructed the jury that they must find for the plaintiff, unless they found that the road was established by user as claimed by the defend ant. Taking the charge as a whole, we do not think the plaintiff was prejudiced by the instruction complained of. We think the charge was fair, and correctly presented the issues to the jury for their determination, and contained the substance of plaintiff's requests, so far as they properly reflected the law. The judgment is affirmed. MCALVAY, MONTGOMERY, OSTRANDER, and HOOKER, JJ., concurred. VILLAGE OF WAYNE v. GOLDSMITH. 1. CERTIORARI-SUFFICIENCY OF RETURN-MATTERS CONSIDERED. Where a justice's return to a certiorari to review a judgment in favor of a village for delinquent taxes states that it includes all the testimony, but neither the tax roll, the return roll of delinquent taxes, nor the extension of the village treasurer's warrant are set out in the return, or contained in the record, an assignment of error that the judgment is not supported by the evidence cannot be considered. 2. SAME-RECORD-SUPPLYING OMISSIONS. The attachment of an exhibit to the record in the circuit court on certiorari, without further return from the justice, is without authority of law, and an exhibit so attached will not be considered. 3. ATTORNEY AND CLIENT - · AUTHORITY TO APPEAR-STATUTE APPLICATION. Section 762, 1 Comp. Laws, does not require a village treasurer, bringing suit in the name of the village for taxes, to prove his authority to appear for the plaintiff. 4. CERTIORARI-RETURN-SUFFICIENCY-MATTERS PRESENTED. On certiorari to review a judgment of a justice of the peace in favor of a village for delinquent taxes, an assignment of error that the tax roll showed on its face that the village treasurer had no authority to bring the suit cannot be considered where the tax roll is not in the record. 5. APPEAL AND ERROR-MATTERS NOT IN RECORD-AFFIDAVITS. The affidavit of counsel cannot be accepted on error as showing what was proven by official documents not in the record. 6. MUNICIPAL CORPORATIONS - POWER OF TREASURER-SUIT FOR TAXES-AUTHORIZATION BY COUNTY TREASURER. Under sections 2868, 2871, 1 Comp. Laws, a village treasurer need not be authorized by the county treasurer to bring suit for delinquent taxes. Error to Wayne; Donovan, J. Submitted June 21, 1905. (Docket No. 182.) Decided October 2, 1905. Assumpsit in justice's court by the village of Wayne against Earl Goldsmith for the taxes of 1903. Plaintiff had judgment, and defendant removed the case to the circuit court by writ of certiorari. The judgment was affirmed at the circuit, and defendant brings error. Affirmed. Edward M. Vining, for appellant. Hiram L. Rice, for appellee. BLAIR, J. This is an action of assumpsit for the recovery of certain personal taxes assessed by the plaintiff against the defendant. The suit was brought by William H. Brewer, who claimed to be the village treasurer, in the name of the municipality, before a justice of the peace of said village. Plaintiff declared orally and filed a bill of particulars as follows: "1903, June 15th. To personal taxes assessed by and in favor of the plaintiff, the village of Wayne, "Total... 56 $14 56" Defendant pleaded the general issue, and by consent of the parties, the said Brewer claiming to represent plain 141 MICH.-34. tiff, and defendant being present in person and by attorney, the cause was adjourned. With reference to the appearance of the parties at this time, the justice's return is as follows: "December 3d. Case called at our name in adjournment of this cause. Both parties present-village of Wayne by W. H. Brewer, village treasurer; defendant by E. M. Vining." On the adjourned day defendant amended his plea by giving notice of special matter. The case was tried by the court without a jury, and resulted in a judgment for plaintiff, which defendant removed to the circuit court by writ of certiorari. The judgment of the justice's court having been affirmed in the circuit, defendant has removed the cause to this court. The return of the justice to the affidavit for the writ of certiorari, so far as it relates to the testimony and proceedings on the trial, is as follows: "December 10th, 1 p. m. Case called at our name in adjournment, both parties present and in court-plaintiff by William H. Brewer; defendant by E. M. Vining. I, the said justice, proceeded to try the said cause without a jury. On the trial of said cause Anthony Snyder, a witness sworn on the part of the plaintiff, testified that he represented the county treasurer. Tax roll was offered in evidence. Defendant objected to the introduction of the so-called tax roll as void, for the reason stated on December 3, 1903, and for the further reason that it is incompetent, irrelevant, and immaterial. This objection is overruled. Defendant had an exception. Return roll of delinquent tax of Wayne village, pages 1 to 12, inclusive, offered in evidence. Objected to by defendant for the reason that it is incompetent, irrelevant, and immaterial, and for the reason stated on December 3, 1903, and for the further reason that there is no proof showing that the taxes have not been paid. Objections overruled and exception to defendant. Extension of the village treasurer's warrant by the county treasurer offered in evidence. Defendant objected to the introduction of warrant signed by F. F. Snow, for the reason that it is incompetent, irrelevant, and immaterial, and does not set forth in what year |