
    * John Loring versus James Bridge.
    Where a promissory note had been given to the county treasurer, for the amount of certain taxes, laid by the Sessions on certain lands through which a road had been located, for the making of such road, and an agreement was made at the time that, if the proceedings of the Sessions had been irregular, the note should he considered as void, for want of consideration, — in an action upon the note, the Court would not adjudge upon the proceedings of the Sessions, so far as to declare the note void for want of consideration, although expressly referred to them by the parties.
    Assumpsit on a promissory note, made by the defendant to the plaintiff, as treasurer of the county of Somerset.
    
    The action came before the Court upon a state of facts agreed by the parties; from which it appeared that, in the year 1805, upon the application of sundry inhabitants of that part of the then county of Kennebeck, which has since been erected into the county of Somerset, to the Court of General Sessions of the county of Kennebeck, the said Court had caused to be laid out a public road through sundry unincorporated plantations, within the limits of the present county of Somerset.
    
    In the year 1810, the county of Somerset having been created, application was made to the Court of Common Pleas of that county, then having, by law, jurisdiction of all matters formerly cognizable by the Sessions, stating that the road, so laid out, would be impassable for a considerable part of the year, and the object of opening it defeated, unless a number of bridges and causeways were erected and made over the various streams and bogs intersecting the same; and that the expense thereof would amount to a greater sum than the inhabitants residing on and near the said road were able to encounter; and thereupon praying the said Court to order the sum of 1500 dollars to be assessed on the owners and proprietors of lands, through which the said road passed, and adjacent thereto. — After notice in the public papers, the said Court caused an assessment to be made on sundry tracts of land, for the completing and putting in repair the road aforesaid. 
    
    The defendant, being the agent of the owners of several of the said tracts or parcels of land, gave the note declared on, to prevent the sale of the same for the taxes so assessed, with an understanding and agreement that all questions, relative to said supposed road and tax, and the right to sell said lands for the non-payment of said tax, should be submitted to the determina tian of this Court.
    * It was agreed that, if the Court should be of opinion that the said road was legally laid out and established, and the tax aforesaid legally ordered and assessed, and duly advertised, so that a sale of said lands, or part thereof, for the payment of said tax, would have been valid and legal, the plaintiff should have judgment for the amount of the note declared on, and costs; — or if the Court should be of opinion that the said road was legally laid out and established, and that the said Court of Common Pleas had authority to assess a tax upon part only of said lands, and that the assessment aforesaid might be considered legal as to such part, then the Court was to determine how much the defendant ought to pay upon the land represented by him as aforesaid, and render judgment therefor with costs; —: but if the Court should be of opinion that said tax was wholly illegal or void, the plaintiff was to become nonsuit, and the defendant allowed his costs.
    
      Williams,
    
    of counsel for the defendant, suggested several errors in the proceedings of the Sessions, in laying out and establishing the road referred to, and in the proceedings of the Court which ordered the assessment of the tax.
    
      
       See Stat. 1796, c. 58, § 3.
    
   Sewall, J.

The Court decline entering upon the inquiries, whether the road was legally laid out, or the tax, for which the promissory note, declared on in this action, was given, was legally assessed. The state of facts will not justify a judicial decision against the consideration of the note, or the liability of the defendant upon it; for it appears that a legal and competent jurisdiction have exercised an authority intrusted with them, in laying out the road, and in the assessment of a tax for repairing it

Preston for the plaintiff.

These proceedings, at least in the latter instancé, are probably questionable; and, on suitable complaints, and by the aid of processes adapted to the occasion, there may, perhaps, be found cause to vacate the proceedings of the Common Pleas and Sessions, in the latter, if not in both, instances. But while remaining of record, as the proceedings of a Court having jurisdiction of the subject-matter, we * cannot hold them so far null and void, as that a promissory note, given for a demand legal in itself, while the orders and adjudications of the Court remain in force, is a promise without consideration, and not recoverable. Nor can we, in this sideway, and exercising a jurisdiction depending altogether on the consent and agreement of the parties to this note, decide the general question submitted to us, of the regularity of the proceedings, and the consequent orders and adjudications of a court of record. This manifest inconvenience would result from a decision in this mode;—as to some purposes, and with respect to some persons, the order for laying out the road, and for assessing the tax, would remain in force; for certainly those proceedings will not be vacated by our decision on this note; while, as to others, their operation is prevented and defeated.

The case agreed was afterwards discharged, and the action was-continued, to give the defendant an opportunity to apply for a certiorari, that the proceedings and orders above referred to might be quashed.  