
    THE PEOPLE, ex. rel. McFARLAND, against THE COMMISSIONERS OF HIGHWAYS, of the town of SALEM, in the county of WASHINGTON.
    Pleas, at the City-Hall of the city of New-York) before the Justices of the People of the state of New-York, of the Supreme Court of Judicature of the same People, of the term of May, in the year of our Lord, one thousand eight hundred and twenty.
    
      State of New-York, Albany County, ss.— The People of the state of New-York, sent to Asa Fitch, Jonathan Wood and Nathaniel Hall, Esquires, three of the Judges of the Court of Common Pleas of the county of Washington, their writ close, in these words :
    “ The People of the state of New-York, by the grace of God free and independent. To Asa Fitch, Jonathan Wood and Nathaniel Hall, Esquires, three of the Judges of the Court of Common Pleas of the county of Washington :— Greeting.
    We, being willing, for Certain causes, to he certified of a certain decision made by you, on a certain appeal of John McFarland and William M. McFarland, from the determination and decision of the Commissioners of Highways of the town of Salem, in the county of Washington aforesaid, in refusing to lay out a road in said town, and also in refusing to discontinue a certain road in the same town, under and by virtue of an act of the legislature of the state of New-York, entitled ‘ An act to regulate highways’—We command you, that the said appeal, together with the testimony given, and offered to be given, on the hearing thereof, with your decision thereon, with all things touching and concerning the same, by whatever names the parties thereto are called, before our Justices of our Supreme Court of Judicature, at the City Hall of the city of New-York, on the first Monday of May next, you send, under your seals, together with this writ; that our said Court may further, thereupon, cause to he üft®6 -therein, what, of right, ought to be done.—Witness, Ambrose Spencer, Esquire, Chief Justice of our Supreme Court of Judicature, at the Capitol in the city of Albany, this fifteenth day of January, one thousand eight hundred and twenty.
    
      The survey, on laying out apublick highway, need not specify tire width. Proceedings on laying out a road through improved lands, and discontinuing an old road.-
    Form of certificate to the commissioners Their refusal. Petition of appeal. Reversal of their decision. Order to layout and discontinue, &c. Certiorari to remove appeal. Return thereto. Continuances, and judgment of affirmance.— Record of the
    judgment.--Alternative mandamus, to compel the' commissioners to lay out and discontinue, &e.
    The Judges on reversing the decision of the commissioners, ordered them to proceed, and. lay out and discontinue, Sea and a mandathe road b'é it out.
    
      mus was holden to lie, to compel their obedience. An order, on appeal, that la id out as applied for, is a sufficient direction to the commissioners, to lay
    
      
      Fairlie, Bloodgood &r Breesc, Clerks. Crary fy McLean, Att’s.
    The Judges aforesaid, to wit, Asa Fitch, Jonathan Wood and Nathaniel Hall, Esquires, now here, on the day and at the place in said writ contained, to wit, on the first Monday of May, in this same, term, at the City Hall of the city of New-York, return to the said writ in the words and figures following, to wit:
    The return of the judges settmg forth
    The petition of appeal,
    
      Washington County, ss. —By virtue of a writ of thé Peo p|e 0f the state of New-York, hereunto annexed, and delivr ’ ’ ered unto us, Asa Fitch, Jonathan Wood and Nathaniel Hall, Esquires, three of the Judges of the Court of Common Pleas, in the county of Washington, in the said writ named, the decision made by us upon the appeal of John McFarland and William M. McFarland, from the determination and decision of the Commissioners of Highways of the town of Salem, in the county of Washington, whereof mention is made in the said writ, with all things touching the same, or thereto belonging, to the J ustices of the People of the state of New-York, at the City Hall in the city of New-York, at the day in ¡he said writ mentioned, distinctly and openly, under our seals, We no certify : That, on the 17th day of September, 1819, the petition of William M. McFarland and John McFarland, by way of appeal from the doings of the Commissioners of Highways in the town of Salem, in said county, was delivered to us ; which petition is in the w-rds following, to wit: “ To the Honourable Asa Fitch, Nxtkaniel Hall and Jonathan Wood, Esquires, three of the Judges of the Court of Common Picas of the county of Washington—The appeal of John McFarland and William M. McFarland, of the town of Salem,, in the county of Washington aforesaid, from the determination and decision of the Commissioners of Highways of the town of Salem aforesaid, 
      lii 'refusing to lay out á road in said town as follows: 1 begin-Wing at the northwest corner of á lot of land in the possession of Abram, Rowan, and running south 45 deg. E. 20 rods ; then south, &c. (by courses, distances and objecls,) the whole distance supposed by admeasurement to be 426 rods ; said road running through the lands of Abram Rowan, passing tin the south side of an old house, on said Towards lot, until it intersects the north line of the farm occupied by the heirs of Capt. James McFarland, deceased; thence through the lands of the said heirs of the said James, along the west side of the barn on said farm, so as to strike the west line of said farm, not far from 50 rods from the southwest corner of said last mentioned farm ; then along the said west line, through the lands of Joshua Steele, to the 'said southwest corner; thence on a southerly course, until it intersects the old road, at or near a small bridge, near the house of Solomon Heath, where the said old road turns to go to the house of David Matthcwsd And your appellants, conceiving themselves aggrieved, by the determination of the said Commissioners, in refusing to lay out the said road, and in not discontinuing the said old road, as also described, do appeal from such determination, praying your Honours to convene, as soon as may be convenient, and decide such appeal, according to the form of the statute in such case made and provided; Dated Sept. 17th, 1819.”
    Their meet- ^ Appeal ^
    Whereupon we the said Judges met at the said town of 'Salem, in the said county, according to the prayer of the said petition, on or about the 19th day of October, 1819, and viewed the respective premises in the said appeal set forth, for the purpose of deciding upon Such appeal; at which time and place William Russell, Aaron Martin and Azor Thompson, Commissioners of highways of said town of Salem, appeared before us the said Judges, and proved on their oaths, &c. (setting forth all the evidence given on the hearing of the appeal—the objections and points of law madeby the counsel, with the decision thereof~several petitions—and lastly, the original petition in question, and the decision of the Commissioners thereon, as follows :)
    That, in the month of September, another petition of John McFarland, and eleven other freeholders of the said town of Salem,, up tin their oaths, was presented to the said Commis-sioners; that the service thereof, on the said Azor Thompson, was made by leaving the same with his wife, at his dwelling-house, in the said town, he the said Azor Thompson then being absent from home; which said last mentioned petition is in the words following, to wit: .
    The petition to the commissioners of highways, to lay out the new, and discontinue the old road;
    “ To the Commissioners of Highways of the town of Salem, in the county of Washington :
    
    “ The subscribers, being freeholders of the said town of Salem, certify, upon their oaths, to the said Commissioners, that a road is necessary' and proper to be laid out in the said town, as follows : beginning at the northwest corner of a lot of land, in the possession of Abram Rowan', and running, &c. (by courses, distances and objects, as above, in the petition of appeal,) and your petitioners .pray, that a road may be laid out, pursuant to said courses and distances, as above mentioned ; and that all that part of the old road, running northward, by where the survey intersects the same, at or near the said small bridge near the house of the said Solomon Heath, until it intersects the road leading from John McFarland's to the house of David Matthew's, in said town, be discontinued. Dated August 25th, 1819.’’
    That but two of the deponents, to wit, William Russell and Aaron Martin, having reviewed the road in the said last petition mentioned, decided on said petition and endorsed said decision on the same, in the words following:
    The decision of the commissioners, endorsed thereon : and
    “ We, the Commissioners of Highways of the town of Sal lem, have this day viewed the ground, through which the road mentioned in the within petition is applied for; and we do disapprove of the application, and refuse to lay out the' said road. September 13, 1819'.
    
      Aaron Martin, ) r, ... ',,
    
      r, ... William Russell, \ Commissioners.”
    That from said last mentioned decision, of Aaron Marlin and William Russell’, the said Commissioners, John McFarland and William M. McFarland appealed to us, three of the Judges of the Court of Common Pleas in said county of Washington, the petition of appeal wherein is the one now under consideration, and is set forth at large, first above, in this return.
    
      
      {The Judges then proceed to state, in their return, that they had examined the old road, and the new one in contemplation, and to give their opinion, in relation to several particulars which rendered the old road of no puhlick utility, and the new one necessary ; that they adjudged and determined the same to be necessary and proper, and conclude thus :)
    The ,jec;3;on of the Judges the petition of appeal-
    With this view, and under these impressions of duty, imposed upon us by the act, entitled “ An act to regulate highway s,” we, the said Judges, reversed the doings of the said William Russell and Aaron Martin, Commissioners as aforesaid, and published our decision in relation thereto, by endorsing the same on said last mentioned appeal, which decision is in the words following, to wit: “ We, the undersigned, Judges of the Court of Common Pleas, in and for the county of Washington, to whom the appeal of William J1Í. McFarland and John McFarland, as within stated, is made, having considered and reviewed the said premises, and having heard the proofs and allegation's of the respective parties, and after due deliberation had thereon, do order, determine and adjudge, that the said John McFarland and William M. McFarland were aggrieved by the decision of the Commissioners within named, in refusing to lay out said road, in the said petition mentioned; and, also, in refusing to order the old road, therein specified, to be discontinued.— And we, therefore, order the decision of the said Commissioners to be, and the same is hereby reversed, pursuant to the provisions of the act in such case made. And we do further order, determine and adjudge, that the prayer of the petitioners, in the said application specified, ought to have been granted; and, we therefore, order the said road to be laid out and opened, according to the survey set forth in the said petition, hereunto annexed; and we also order the old road, in the said petition specified, to be discontinued, 33a» ted this 20th of October, 1819.
    
      Asa Fitch,
    
    
      Nathaniel Hall,
    
    
      Jonathan Wood.f
    
    
      In testimony whereof, we have, respectively, to these pre«
    sents affixed our seals, and subscribed our names. Dated this 12th day of July, 1820.
    
      flsa ■ Fitch, (l. S.)
    
      Nathaniel Hall, (l. s.)
    
      Jonathan Wood, (l. s.) 
    
    Continuance of the cause in this Court by cur. ado. vult.
    
    But because the said Justices, now here, are not yet ad- . , , . . , . . . * P , vised what judgment to give, pi- and upon the premises aforesaid, a day is given to the parties aforesaid, before the said Justices, at the Capitol in the city of Albany, on the first Monday of August next, to hear their judgment thereon. At which day and place, last aforesaid, before the Justices' aforesaid, came, the parties aforesaid, by their attorneys. But because, &c. (continuances by cur. adv. vult. to January term, 1822.) Whereupon, all and singular the premises being seen, and by the Court, now here, fully understood, and mature deliberation, being thereupon ’ had, it appears to the said Court, here, that there is no error in the proceedings aforesaid; and that the decision of the Judges aforesaid, on the appeal aforesaid, in ordering the decision of the Commissioners aforesaid to he reversed, and in ordering the road specified in said petition to be laid out and opened, according to the survey set forth in the said petition, above mentioned, and in ordering the old road, in the said petition specified, to be discontinued, was, in all respects, just' and proper. Wherefore, the said decision and proceedings of the said Judges, ought to be, in all things, affirmed.
    
    aflh-mance. °f
    Therefore, it is considered, that the decision and proceedings aforesaid, of the Judges afore- > • , ' ' _ said, in form aforesaid made, be in all things affirmed, and stand in full force and effect, any thing to the contrary, for error assigned, in any wise, notwithstanding.
    
      At the last August term—Russell, upon the above proceedings, moved for and obtained, in behalf of the relators, a rule for a mandamus to compel a compliance with the decision of the Judges.—The mandamus was thus :
    “ The People of the state of New-York, by the Grace of God. free and independent;—To the Commissioners of Highways ’ c „ , , c , r, ,. ot the town of Salem, Greeting.
    The mandamus thereon,
    
      “ Whereas, in and by a certain act of the legislature of the said, state of New-York, made and passed the 19th day of March, in the year of our Lord, 1813, entitled ‘An act to regulate highways,? it is, amongst other things, enacted and declared, ‘ that it shall not be lawful for any Commissioners of highways to lay out any road through improved or cultivated land, without the consent qf the occupant or owner thereof, unless upon the application of twelve reputable freeholders of the town, in which such road shall be laid out, certifying, upon oath, that such road is necessary and proper ; and that all publick roads, to be laid out by the Commissioners .of any town, shall not be less than four rods wide and it is further, by the said act, enacted, ‘ that whenever any person or persons, shall conceive himself or themselves aggrieved, by the determination of the Commissioners of highways, either in laying out, altering or discontinuing, qr in refusing to lay out, alter or discontinue any road, it shall be lawful for such person or persons, within forty .days thereafter, to appeal to any threp of the Judges of the Court of Common Pleas, for the county in which such road is situated; whose duty it shall be to convene, as soon as may be convenient, and decide such appeal; and their decision, or that of any two of them, shall be conclusive in the premises and whereas it appears to us, and we have been given to understand in our Court, before our Justices of our Supreme Court of Judicature, upon the oath of John McFarland, that a petition, bearing date the 25í/¿ day of August, in the year of our Lord, 1819, was duly presented to the Commissioners of highways of the town of Salem, in •the county of Washington, and that said petition certified to said Commissioners, under the oaths of twelve reputable freeholders of the said town of Salem, that a certain road was necessary and proper to be laid out in said town, ao cording to the following metes and bounds, to wit: beginning, &C. (by courses, fyc. as before mentioned, ante,-p. 25,) and *^at said petition prayed, that a road might be laid out, pursuant to said courses and distances, as above mentioned : and that all that part of the old road, running northwardly, where the survey intersects the same, at or near the said-small bridge, near the house of the said Solomon Heath, until it intersects the road, leading from John McFarland's to the house of David Matthews, in said town, might be discontinued ; and, that two of said Commissioners, by an endorsement on the back of said petition, bearing date the 30th day of September, 1819, did disapprove of said application, and refuse to lay out the said road ; whereupon, the said John McFarland and William M. McFarland, appealed to three of the Judges of the Court of Common Pleas of the county of Washington, pursuant to the provisions of the said act above mentioned; and, that three of the said Judges, to wit, Asa Fitch, Nathaniel Hall and Jonathan Wood, duly proceeded to act on said appeal, according to law ; and that, after-viewing the premises and hearing the proofs and allegations of the parties, the said Judges reversed the doings of the said Commissioners, and ordered that the said new road be laid out, according to the courses and distances above recited ; and published their decision, by an endorsement on the back of said appeal, in the words and figures following, to wit: (as before, ante, p. 27 ;) and whereas it further appears unto us, in our said Court, that the said Commissioners, after the doings of the said Judges as aforesaid, sued out of our said Court, before us, a certain writ of certiorari, directed to the said Judges, returnable before our Justices of our said Court, at the City Hall of the city of New-York, on the first Monday of May, 1820; and that the said Judges made due return to our said Court, in obedience to the command of said writ of certiorari; and that afterwards, to wit, in the term of January, 1822, our said Court, before our said Justices, duly affirmed, in all things, the proceedings of the said Judges, as likewise appears of record. And whereas it further appears unto us, that you, the said Commissioners, had due notice of the proceedings of the said Judges of the said Court of Common Pleas of the county of Washington, and of the affirmance of the said proceedings, in all things, by our said Court, before our said Justices, and that you have been often requested to lay out and open said road above mentioned, but that you have, hitherto, wholly refused, and still do absolutely refuse, to lay out and open said road, to the great damage and grievance of the said John McFarland, as, by his complaint, we are informed : Wherefore, the said John has besought of us, a fit and proper remedy in this behalf; and we being willing that those things should be done which are right and proper in this behalf; do therefore command you, the said Commissioners, and every of you, firmly enjoining you, that you do, without further delay, forthwith lay out, and cause to be opened, a certain road in said town of Salem, according to the following metes and bounds, that is to say; Beginning, &c. (courses, fyc. as before,) and that you cause all that part of the old road, (as before described,) forthwith to be discontinued; or that you shew cause, why you do not, before our Justices of our Supreme Court of Judicature, at the Academy, iti the town of Utica, in the county of Oneida, on the third Monday of October next. And have you then there this writ. Witness, Ambrose Spencer, Esquire, Chief Justice, at the Capitol in the city of Albany, the 17th day of August, in the year of our Lord, 1822.
    
      Fairlie, Bloodgood <£- Breese, Clerks.”
    
    C. L. Allen, Att’y.
    In their return, the defendants attempted to excuse themselves, by objecting that the survey, according to which they Were required to act, was mere right lines from point to point, But specified no width of which the said road should be. They also insisted that the Judges had no power to order them to lay out the road ; and, if they possessed this power, yet they had not given any such direction, in the order they had made upon the appeal, and they feared that actions of trespass might be brought against them if they proceeded; and their apprehension, of such prosecutions, arose from the decision in 16th John. Rep. 61. This return was, at the' present term, submitted to the Court, without argument,
    
      
      
         In Lawton v. The Commissioners, &c. (2 Caines, 179,) there was an assignment of errors, as in ordinary cases, upon certiorari to a Justice’s. Court. In this case there was none. Iq England, the proceeding to quash or affirm the doings of inferior magistrates, seems In be by the summary proceeding of a rule to shew canso ; (Rex v. St. Issey, Burr. Sett. Cas, 826, &c. Rex v. Moor Critchell, 2 East, 66. Rex v. Oulton, Burr. Sett. Cas. 68,) in such case, of course, no assignment of errors is necessary.
    
    
      
      
         Vid. Rex v. College of Physicians, (5 Burr. 2740 to 2761,) for the forms and proceedings upon an English mandamus to a corporation, with the return thereto.
    
   Curia.

The first objection was settled against the defendants, in Lawton et al. v. The Commissioners, &c. of Cambridge, (2 Caine's Rep. 178.) The case of The People, ex. rel. Shaut, v. Compton et al. (16 John. Rep. 61,) decides, that the Judges may themselves lay out thti road. The-question as to their power of ordering this to be done by the Commissioners, and the propriety of a mandamus to compel a compliance, was before the Court in this very cause, at August term last, with the other questions now made, and they were then decided against the defendants. The Judges directed the road to be laid out as applied for. This direction is sufficiently explicit, if any was necessary. It must be construed according to the subject matter; and can apply to no persons, other than the Commissioners«

Rule for a peremptory mandamus*.  