
    Philip Merrill et al. Petitioners, versus The Inhabitants of Berkshire.
    A deputy sheriff who is an inhabitant of a town through which a highway is laid out by the county commissioners, is incompetent by reason of interest, to summon or preside at the trial before a jury granted on the application of a party aggrieved by the doings of the commissioners in locating the way or assessing damages.
    An agreement by one of the commissioners, acting without authority from the board, to waive the objection arising from such interest, is not binding on the county.
    But if the agent of the county, knowing the interest of the officer, proceeds in the trial before the jury, the county will be considered to have waived the objection.
    A party calling a witness interested against him, cannot confine the cross-examination to points in which the witness has no interest.
    On a trial before a jury empannelled by an officer in pursuance of the statutes respecting the laying out of highways, it is the province of the officer, and not of the jury, to determine on the admissibility of evidence.
    An agreement made between one of several tenants in common and the county commissioners, in relation to the location of a highway over the land held in common, or the assessment of the damages, is not binding on the co-tenants.
    One tenant in common of land over which the commissioners have laid out a highway, cannot apply for a jury, without the joinder of the co-tenants.
    The verdict of such a jury, by which the location by the commissioners is altered, is sufficiently certain, if it gives the commencement and termination, and the courses and distances, so that the actual location of the way by the jury can at any time be readily ascertained.
    The jury have no authority to lay out the way over the land of any person except the petitioners for the jury$ it is therefore not necessary that their verdict should name the owners of the land over which the way is established.
    The jury cannot lawfully decide that there shall be no road, when the county commissioners have determined that common convenience requires that there should be one.
    It is the province of the commissioners to determine the general course and terminations of a highway, and the jury may make only such minor alterations as in their opinion may improve the highway or render it less burdensome to individuals or corporations affected by it.
    Where the jury alter the course of the highway, they may of necessity assess the damages for such alteration.
    A petition was presented to the county commissioners, signed by M. Griffin, M. C. Chamberlin, L. Atwood, Philip Merrill, J. C. Chase and Hosea Merrill, reciting that certain alterations have been made by the commissioners in the highway from Pittsfield to Dalton, where it passes the land of the petitioners, and praying that a jury may be granted, to make such alterations in the location of the highway as to them may seem meet, and also to increase the allowance made by the commissioners for the damages severally sustained by the petitioners.
    Upon this petition a warrant was issued, and a jury was summoned and empannelled by John Pomeroy, a deputy sheriff, who was an inhabitant of Pittsfield.
    Chase, one of the petitioners, is a tenant in common with A. F. Merriman of a portion of the land over which the road was located by the commissioners, and Merriman, at the time of the location of the road, desired the same, and agreed verbally with the commissioners, for himself and Chase, as to the amount of their damages.
    At the hearing before the jury, Hosea Merrill was called by the attorney for the county as a witness to one fact only, and that in reference to the removal of a barn on the land of Merriman and Chase, and after he had been examined by the attorney for the county upon this point, the attorney for the petitioners insisted that he might lawfully examine the witness in reference to the witness’s damages and all other matters before the jury, on the ground that the witness was not only a petitioner for increase of his own damages but also for the alteration of the location, and the questions put to him by the attorney for the petitioners were intended to refer to and operate upon the question of change of location of the whole road.
    To this the attorney for the county objected, but the objection was overruled by the jury, and the testimony of the witness admitted in reference to his own damages and those of the other petitioners.
    The jury, by their verdict, determine that the public good does not require the alteration made by the commissioners, and they alter the location as follows, to wit, “ beginning against the west gate-post near Chase and Merriman’s house in the centre of the now travelled path, thence east 21 degrees north, 52 rods, thence east 12 degrees north, 55 rods, thence east 14 degrees south, 118 rods, to the east line of Martin Chamberlin’s land ; the above survey is made through the cen tre of the road and is to be four rods wide.”
    The road as laid out by the jury, was. intended to be laid out over the old road, but in some places small deviations were made, going across corners of land belonging to the petitioners. The jury did not allow damages to any of the petitioners.
    The alterations made by the commissioners extended over land of Z. Crane about 22 rods, but the location by the jury extended only to the east line of Chamberlin’s land, (which lies west of Crane’s,) without referencé to that portion of the road located across Crane’s land, and without meeting the same.
    To the acceptance of this verdict the counsel for the county made the following objections : —
    1. That Pomeroy, the officer who summoned the jury, being an inhabitant of Pittsfield, was interested in the proceedings.
    The fact that Pomeroy was an inhabitant of Pittsfield and interested, was known to the counsel for the county before the jury were empannelled, and it was agreed by the attorney for the petitioners and. by L. Washburn, chairman of the commissioners, that Pomeroy should be the officer, before the warrant was delivered to him.
    2. That the testimony of Merrill in reference to his own damages and the damages of the other petitioners, and for the purpose stated by the attorney for the petitioners, was improperly admitted.
    3. That Chase was bound by the act of his co-tenant and could not of right petition for a jury.
    4. That the verdict was void, 1. for its uncertainty as to the new location ; — 2. because it is inconsistent with the situation of the old road and the new one located by the commissioners ; and 3. because the verdict does not mention the owners of the land over which the road passes.
    5. That the jury had no lawful authority to alter the location in the manner they have done and upon this petition.
    6. That Crane and Merriman did not join in the petition.
    7. That the jury had no lawful authority to discontinue the road laid out by the commissioners, or to do'that which would operate as a discontinuance of the same.
    8. That the course of the road laid out by the jury, is inconsistent with the alterations prayed for, and it does not terminate in or with the road laid out by the commissioners.
    These objections were overruled by the Court of Common Pleas and the verdict affirmed ; and to this opinion and decision of the court the counsel for the county excepted.
    Sept. 16th.
    
    
      Hubbard and Marsh,
    for the county, insisted upon all the objections made in the court below.
    In support of the first objection, they cited Barre Turnp. Corp. v. Appleton, 2 Pick. 430.
    The testimony of Merrill as to his own damages, was improperly admitted. The petitioners applied severally for an increase of damages, and each is to be considered as having a several cause before the jury. Merrill, therefore, was properly called to testify in the cause of Chase and Merriman ; but this did not entitle him to be a witness in his own cause.
    As to the third objection they cited Rising v. Stannard, 17 Mass. R. 285.
    To show that the verdict ought to mention the owners of the lands over which the road is' to pass, they cited Commonwealth, v. Coombs, 2 Mass. R. 489.
    Lancton, contra.
    
    The objection to the officer on the ground of his being interested, was waived by the petitioners. Barre Turnp. Corp. v. Appleton, 2 Pick. 434.
    The agreement of Merriman was not binding on Ms co-tenant Chase ; and if Merriman did not feel aggrieved by the doings of the commissioners, and did not petition for a jury, this could not prevent Chase from petitioning.
    To show that the location by. the verdict is sufficiently certain, he cited Hinckley v. Hastings, 2 Pick. 162.
    In revising the location made by the commissioners, the jury are not confined to the same termini. They may begin at one terminus and make an alteration at the other. They are finally to fix the location. A party aggrieved by the commissioners’ location has a right to a jury, and they may correct the whole error in the location. The portion of the road laid out by the commissioners over Crane’s land was rightfully discontinued, as the verdict finds that the “ public good did not require the alteration made by the commissioners.” St. 1786, c. 67 ; St. 1802, c. 135 : St. 1818, c. 121. It is true that Crane did not join in the petition for the jury, but he may have been satisfied that the road would be altered upon the petition of other persons, without expense to himself.
   Morton J.

afterwards delivered the opinion of the Court. It appears from the bill of exceptions allowed by the presiding judge of the Common Pleas, that on the application of a number of individuals to the county commissioners, the highway leading from Dalton to Hancock through Pittsfield was altered and straightened ; that in altering the course of the road a new way was laid out over the land of several individuals, and damages duly assessed ; that a part of these individuals prayed for a jury, which was accordingly summoned ; and that the jury altered the course of the road as laid out by the commissioners, and returned their verdict to the Court of Common Pleas. The verdict was there objected to on several grounds, which were overruled by the court and the verdict accepted. To this decision the county excepted ; and they now rely upon the same objections, and contend that for some of these causes, at least, the judgment of the Common Pleas ought to be reversed.

We will now proceed to examine the several objections to the proceedings, in the order in which they were urged. The first objection,- if it was not waived, is valid and must prevail. The officer who summoned the jury, being an inhabitant of Pittsfield, was clearly interested and incompetent to perform that service or preside at the trial before the jury. Barre Turnp. Corp. v. Appleton, 2 Pick. 430. The agreement of the chairman of the county commissioners is not valid. Acting alone and without authority from the board, he has no power to bind them. They can only act together and by a major vote.

But the agent of the county who was authorized to appear before the jury, then knowing the interest of the officer and not objecting, the county must now be considered as having waived the objection or ratified the unauthorized agreement of the chairman of the county commissioners. -

The second objection clearly cannot prevail. The party calling a witness interested against him cannot confine the cross-examination to those points in which the witness has no interest. He is made competent and may be called on to testify to points in which he has an interest as well as to others. He was sworn generally in the suit, and cannot be restricted in his testimony, to facts relating to such individual or such parts of the case as the party calling him may choose to select.

It appears that the jury undertook to determine upon the admissibility of the evidence. This was not within their province. It is the duty of the officer not only to summon the jury, but to preside at the trial, to decide upon challenges and excuses of jurors, and to determine the competency of witnesses, the admissibility of evidence, and other incidental questions arising in the course of the trial.

The third objection is, that Chase, one of the petitioners, was debarred his right to a jury, by the parol agreement of his co-tenant in relation to the laying out of the road and the assessment of damages. It is very clear that the land of one tenant in common cannot be incumbered or in any way injuriously affected by any agreement of his co-tenant. But it is also equally clear, that one tenant cannot apply for a jury without the joinder of his co-tenants. Otherwise the owner of a very small portion of estate might procure an alteration in the laying out of a highway, against the wishes and much to the injury of the principal owners. The assessment of damages must be joint and cannot be severed by the jury. Tenants in common must join in all actions for injuries to the common estate. The application by Chase alone would not warrant the appointment of a jury to revise the proceedings of the commissioners in laying out the road over the land of Chase and Merriman.

The fourth objection relates to the form of the verdict. It is contended that it is void for uncertainty. But we think it sufficiently certain. The commencement and termination, and the courses and distances being given, the actual location of the road can at any time be readily ascertained.

It was not necessary to name in the verdict the owners of the land over which the road is established, because the jury have no power to lay out the road over the land of any other person. Although they may alter the course of the road, yet in such alterations they are limited to the land of the petitioners. The statute does not authorize an original laying out by them. It makes no provision for notice by them to owners of land over which they may locate a way. It contemplates the appraisement of damages in the first instance by commissioners, and gives to land-owners the privilege of having two appraisals if they shall so elect, the one by the permanent public officers, the other by a jury selected by lot for that sole purpose.

The remaining objections are so connected and so resolve themselves into one subject, that they may more properly he considered together. They relate to the respective powers of the county commissioners and of juries summoned according to the statutes regulating the laying out of highways.

A jury, when duly summoned, have the power of revising the proceedings of the commissioners. But this power is a limited one. They may increase or diminish the damages assessed by the commissioners. They may, to a certain ex tent, alter the course of the road, and of necessity assess the damages for such alteration. But they do not possess the power of laying out a road originally, nor can they, under the pretence of making alterations, exercise this power.

We have already shown that the jury cannot so alter a road as to remove it from the land of the petitioners to that of other persons. Nor can they, by beginning at one of the termini of the road laid out by the commissioners, proceed in a different direction and terminate at a different point from that established by the commissioners. It is not their province to lay out or discontinue highways. They have no power, in any form, to reverse the decision of the commissioners. They may reassess the damages. They may, within certain limits, alter the course of the road. But they cannot decide that there shall be no road when the commissioners have determined that common convenience requires that there should be one. It is the province of the commissioners to determine the genera* course and terminations of a highway, and the jury may only make such minor alterations as in their opinion may improve the highway or render it less burdensome to individuals or corporations affected by it.

In the present case, the jury undertook to change the termination of that part of the way which came under their supervision, and in doing this, left portions of it so disconnected, that they could be of no utility for public travel, while the burden of making and keeping them in repair remained.

We are therefore of opinion, that the jury exceeded their power, and that the Court of Common Pleas erred in accepting their verdict. Their judgment must be reversed and the papers remitted to them for such further proceedings as the circumstances of the case may require. 
      
       See Rev. Stat. c. 24, § 18.
     
      
       See Moody v. Rowell, 17 Pick. 499; Morgan v. Brydges, 2 Stark. R. 314 ; Rex v. Brooke, ibid. 472; Ellmaker v. Bulkley, 16 Serg. & R. 77; Greenl on Evi. § 445.
     
      
      
         Rev. Stat. c. 24, § 25.
     
      
       See Rev. Stat. c. 24, § 48, et seq.
      
     
      
      
        Lanesborough v. County Commissioners of Berkshire, 22 Pick. 278. By Rev. Stat. c. 24, § 13, the jury may make any alterations that may be prayed for between the termini as established by the commissioners, so far as they shall deem such alterations to be necessary and proper. Under this provision, the jury may make alterations in a highway that has been located anew by the commissioners. State Lunatic Hospital v. Worcester, 1 Metc. 437. See Gloucester v. County Commissioners of Essex, 3 Metc. 375; Danvers v. County Commissioners of Essex, 2 Metc. 185; Inh. of Livermore, Petitioners, 2 Greenl 275.
     