Ex parte Commissioners of Highways of Danube

Headnote

The power of the judges of ' the common pleas, under the act to regulate high ways, (sess. 36, eh. 33, .s'. 36,) is strictly appellate ; and they cannot lay out a road differing from the one submitted to the commissioners.

On motion for a certiorari to be directed to three of the Judges of the Court of Common Pleas of the county of Herkimer, it appeared that a petition, with the sworn certificate of twelve freeholders, pursuant to the 16th section of the act to regulate highways,^[1] had been presented to the relators, praying them to lay out a certain road, from a certain point to another certain point, in the town of Danube, and so from one object to another, in general terms, without mentioning any certain courses and distances. The relators rejected the petition, and Mr. Brown, one of the inhabitants of that town, appealed frpm that decision to three of the Judges, &c. of the county, pursuant to the 36th section of the act.^[2] The Judges reversed the decision of the commissioners,^[3] and ordered a road to be laid out by certain courses and distances, ascertained on survey ; but which were, in many respects, materially variant from the line of the road as passed upon by the commissioners.