
    The Inhabitants of Ipswich versus The County Commissioners for the County of Essex.
    If a party to the proceedings of county commissioners in laying out a highway, has notice that one of them is not disinterested, but takes no exceptions to such commissioner’s acting, until after the highway is established, he will be deemed to have waived any exception on that account.
    Where a county commissioner is interested in a road by reason of his owning land in a town- through which the road is laid out, and he lias been taxed by the town for his land, the town must be considered as having notice that he is so Interested. Where notice of a petition for a certiorari to county commissioners was served upon their chairman, and he alone appeared and made answer in behalf of the commissioners, the Court, on dismissing the petition, directed that costs should be taxed for the travel and attendance of only one commissioner.
    This was a petition for a writ of certiorari to the county commissioners of Essex. The petitioners represent that the commissioners, at their April term in 1829, adjudged that a certain road passing through the towns of Hamilton and Ipswich should be straightened, widened and altered ; that iri June 1829 they made a series of locations in pursuance of such adjudication ; and that at their July term 1829, such locations were allowed and recorded, and the way as laid out by them was established ; and the petitioners allege, that those proceedings are erroneous and void, because Asa W. Wildes, one of the commissioners, acted in the adjudication, location and other proceedings above mentioned, although he was then the owner of land in Ipswich, through which town the road as altered passes, and was therefore not a disinterested person, within the contemplation of law.
    It appeared that Mr. Wildes owned a small parcel of land in the town of Ipswich, for which he had been taxed by the town. The land was about four miles from the road in question.
    JVw, 18th.
    
    Andrews, in support of the petition,
    referred to Anc. Charters, &c. 126, 505 ; St. 1786, c. 67, § 4 ; St. 1802, c. 135, § 1 ; St. 1827, c. 77, §12; London v. Wood, 12 Mod. 687.
    
      Huntington, for the respondents,
    cited New Salem, Petitioners, &c., 6 Pick. 470 ; Commonwealth v. Ryan, 5 Mass R. 90 ; Commonwealth, v. Worcester, 3 Pick. 462 ; St. 1827, c. 77, § 2, 9 ; Ex parte Weston, 11 Mass. R. 417.
    
      Nov 20th
    
   Shaw C. J.

delivered the opinion of the Court. Without going over the elaborate argument, on both sides, and recur? ring to ancient and existing statutes, to determine whether the minute interest of the commissioner would have disqualified him had the exception been seasonably taken and insisted on, we are clearly of opinion that the exception was waived. It was well known to the town, that Mr. Wildes was a freeholder there, because they had taxed him. They were parties to the proceedings, and might have objected to his sitting, if they thought fit. But they might also waive the exception if they chose, and if they were satisfied that the decision would be impartial. By consenting to proceed, with a full knowledge of the ground of exception, the exception was waived. It would be attended with great injustice were we to hold otherwise. A party might take his chance for a favorable decision, knowing of an exception which would invalidate the proceedings if unfavorable, and intending, in that event, to rely upon it. Besides, if the exception had been seasonably taken, the commissioner might have withdrawn or been replaced by one against whom no exception would lie.

petition dismissed.

Notice of the petition had been given to the commissioners, by serving an attested copy upon Mr. Wildes, the chairman ; who appeared and filed an answer in behalf of all the commissioners ; and upon a question being made in regard to the costs, the Court directed that they should be taxed for the travel and attendance of only one commissioner.  