#### The Inhabitants of Boxford, Petitioners, &c. *versus*The County Commissioners of Essex.

Where a road was laid out by the Court of Sessions in July, 1825, and a town through which it was laid out neglected to make it, and did not apply to the commission» ers of highways, nor, until October 1828, to the county commissioners, to have it made at the expense of the county, and in the mean time the damages to owners of the land had been paid and the town had been indicted and fined for not making the road, it was *held9*that the delay on the part of the town was unreasonable, and a *mandamus*to the county commissioners to take supervision of the road was refused.

The petitioners represented that the Court of Sessions, at April term 1825, adjudged that the road leading from the west meetinghouse in Bradford to the west meetinghouse in Boxford should be widened and straightened, and that two pieces of new road should be laid out, one in Bradford and Boxford, the other over B. Tyler’s lands ; that a committee appointed for those purposes, having executed their duties, made a report at July term 1825, which was accepted on the 12th of July ; that the road was not constructed or worked in any part on the 1st of July, 1826 (the day when the statute of 1825, c. 171, providing for the appointment of commissioners of highways, took effect) ; that the inhabitants of Bradford presented a petition to the commissioners of highways at their session on the 14th of March, 1827, stating the foregoing facts, and praying that they would cause the road to be worked, and that on the 15th of May following the commissioners passed an order that the pieces of new road should be constructed and finished to their acceptance ; that the commissioners did not take supervision and review of the residue of the road, as it was widened and straightened by the Court of Sessions, and did not assess damages to the owners of lands over which the road was extended, in any part thereof; that the present petitioners offered a petition to the county commissioners at their (ourt held at Newburyport in October, 1828, praying that they would take supervision and review of those portions of the road lying in Boxford not already supervised and reviewed by the commissioners of highways, and assess damages to the owners of land over which the road is extended in Boxford, as *343well the part supervised and reviewed as the residue, and that the county commissioners ordered that they should take nothing by their petition : — wherefore the petitioners prayed for a rule upon the county commissioners to show cause why a *mandamus*should not issue, commanding them to take supervision, &c and to assess damages to the owners of land, to the end that they may receive the same out of the treasury of the county.

The respondents made a return, stating that at the first meeting of the commissioners of highways, held August 8, 1826, the clerk of the Court of Sessions transferred to them a list of cases then pending in that court, and that the case respecting this road was not on the list, and that it was not made known to those commissioners until March, 1827, when the petition of Bradford was presented to them; that upon that petition an order of notice was served upon the inhabitants of Boxford ; that in pursuance of the order the commissioners met at the time and place therein mentioned, and a committee in behalf of Bradford directed the commissioners to the pieces of road located by the Court of Sessions and then unworked, a part of the location being over land in Boxford ; that there was no appearance on the part of Boxford ; that the road was then fenced, and no suggestion was made that the damages were or were not paid by the towns through which the road passed, pursuant to the adjudication of the Court of Sessions ; that the commissioners ordered the entire new locations then unworked, to be made and completed to their acceptance, and afterwards certified the amount of the expenses for working the same, to the Court of Sessions at July term 1827, and the court drew a warrant therefor, which was satisfied out of the county treasury ; that no petition had since been preferred in relation to the road, either to the commissioners of highways or to the county commissioners, until the meeting of the county commissioners in October, 1828, when the petition of Boxford was presented ; that they were not then in session as commissioners of highways as well as county commissioners, the board of commissioners of highways not having been notified of a meeting or that any business would be attended to, of which they might have jurisdiction, nor were they all present; *344that on the 1st of July, 1826, the road remained m the same state as when the adjudication of the Court of Sessions was made thereon, and the town of Boxford had been guilty of neglect in that behalf; that at March term 1828 of the Common Pleas an indictment was preferred against the town for such neglect, on which they were fined 200 dollars ; that at June term, 1828, of that court an indictment was preferred against them for similar neglect, which was still pending ; and that the damages awarded by the locating committee of the Court of Sessions were in part paid before the 1st of July, 182.6, and wholly paid before the present petition was offered.

*Nov. 7th.*

*Gerrish*and Choate, for the respondents,

objected that the petitioners were not entitled to relief, on account of their unreasonable delay to take advantage of *St.*1825, c. 171 ; and that if a *mandamus*should be granted, it ought to be directed to the commissioners of highways, and not to the county commissioners.

*Huntington,*contra,

said that as the road was not worked before the 1st of July, 1826, it then became subject to the supervision of the commissioners of highways, and the proceedings were to be begun *de novo;*that as all the documents respecting it, in the Court of Sessions, were transferred to those commissioners, it was their duty to take notice of it *ex officio,*but that their attention was actually called to it by the town of Bradford ; that the town of Boxford was not in default on the 1st of July, 1826, as twelve days remained to complete the year in which, by *St.*1796, c. 58, § 6, a road laid out by the Court of Sessions is required to be made passable and convenient for travellers ; and that the reason of the statute of 1825, c. 171, applied to this case, the object being to make the county bear the expense of all roads which were not worked at the time that statute took effect. He cited *Danvers*v. *Essex Commissioners of*Highways, 6 Pick. 20.

Wilde J.

afterward drew up the opinion of the Court. Upon the facts stated by the respondents, and which are not controverted, we are of opinion that the petitioners are not entitled to relief; and consequently it is immaterial whether *345the county commissioners or the commissioners of highways have jurisdiction of the subject matter of the petition.

The road in question was laid out or altered in July, 1825, by order of the Court of Sessions, and ought strictly to have been opened and worked within a year from and after that time. But as within that period the statute of 1825, c. 171, intervened, by which all roads laid out but not worked at the time that act took effect were subjected to the supervision and review of the commissioners of highways, we are of opinion that the petitioners are not chargeable with neglect in not opening and working the road within the year, as they might reasonably expect that this would be ordered to be done by the commissioners of highways at' the expense of the county. But application for this purpose ought to have been made to the commissioners within a reasonable time after the act took effect. But no such application to the commissioners of highways was ever made by the petitioners, although they were notified of a similar petition made by the town of Bradford. And at the March term of the Court of Common Pleas, 1828, an indictment was found against them for neglecting to open and work the road. And at the June term following another indictment was preferred against them for a like offence. On the first indictment the petitioners were tried and found guilty, and a fine of 200 dollars was imposed upon them, and the second indictment is now still pending against them. It was not until after all these proceedings, *viz.*in October, 1828, that application was first made to the county commissioners to open the road and to make it passable at the expense of the county. The principal object of that application must have been, to obtain reimbursement out of the county treasury for the fine imposed on the inhabitants of the town for neglect of duty and to exonerate them from further liability. And this certainly was altogether inadmissible. The petitioners voluntarily subjected themselves to the burden of opening and working the road, by gross negligence ; and the county commissioners did right in rejecting their application. The operation of the act of 1825 was not to vacate the proceedings of the Court of Sessions in altering the road ; but to authorize the commissioners of highways to transfer the *346expense of opening and working it from the town to the county This privilege the petitioners might waive, and they have im plicitly waived it by their negligence.

*Petition for mandamus dismissed.*