
    MATTER OF HIGHWAY.
    The Court will appoint freeholders to review a road, although several terms have elapsed after caveat filed; the cause having been removed by writ of error to the Court of Errors.
    Hamilton,
    moved for the appointment of freeholders to review a road laid by surveyors of highways, appointed by this Court, to whose return, a caveat was filed. Upon some decision of this Court, (the nature of which the Reporter does not know) but probably on exceptions to the return, the proceedings were removed by writ of error to the Court of Appeals, which reversed the judgment of this Court. The proceedings were ordered to be brought back to this Court, and the Court directed to proceed thereon.
    
      JFYelinghuysm, eontra.
    
    The application is too late. The statute Rev. Laxos, 617 s. 7, requires the application for the appointment of freeholders, to be made at the next term after the caveat is filed.
   Hornblower, C. J.

If the Court, upon the coming in of a return of a road, and a caveat is filed, take time to advise on any question which may arise thereon — a strict construction of the statute, would bar an application for a review. And yet the act of the legislature was intended to give to freeholders, the power of reviewing roads, and to the Court the power of appointing the freeholders — I think the application is regular and ought to be granted.

Ford, J.

I perceive great difficulty in reconciling different parts of the acts of the legislature on this subject. But I must consider the whole proceedings as of the present term. And if so, and this Court had decided against the exceptions which were made, an application for the appointment of freeholders, would be in time. I concur in granting the application.

Ryerson, J.

I concur in granting the rule. Where lands are taken from the owners, for roads, they are entitled to all legal protection.

Ride granted.

Cited in State v. Northrup, 3 Harr. 273 ; Eames v. Stiles, 2 Vr. 493; Allen v. Tyler, 3 Vr. 502.  