
    Jordan & al. petitioners for certiorari.
    
    The District Court, on an appeal from the doings of County Commissioners, as to highways, have no authority to award costs against the original petitioners.
    Whether an appeal can lie to the District Court from the doings of County Commissioners, in the matter of a town way ; quere.
    
    The petitioners wished a town road to be established, extending from a point in one town to a point in another town.
    Upon their application the selectmen of one of the towns located the part within its limits, but the town refused to ratify their doings. The selectmen of the other town declined to make any location. The petitioners then appealed to the County Commissioners, who ordered the road to be made in both of the towns.
    One of the towns appealed, and the committee, appointed by the District Court, reported that the order of the County Commissioners ought to be wholly reversed. The District Court accepted the report, and awarded costs to the appellants to be paid by the petitioners.
    
    To quash the proceedings of the District Court, so far as to vacate their said award of costs against the petitioners, this writ of certiorari is prayed for.
    Morgan, for the petitioners.
    
      Davies, contra.
   By the court.

The District Court had no authority to adjudge costs against the petitioners. There is a provision, Stat. of 1847, c. 28, § 5, that if the judgment of the County Commissioners be affirmed, the appellants may be adjudged to pay costs arising after the appeal. But, in this case, the judgment of the County Commissioners was reversed, not affirmed. The discretionary power as to costs, given at the close of the section, extends only to allowances from the county treasury. The adjudication of the District Court, as to costs, was therefore erroneous, and the writ of certiorari must be granted. If it had been necessary to examine the point, it would perhaps be found that, as to town ways, no appeal to the District Court lies from the judgment of County Commissioners.  