
    THE STATE v. TEN EYCK.
    
      Certiorari to Common Pleas of Hunterdon. Matter of Road.
    Where three terms of this court have intervened between the return of a road by Surveyors, and an application for a Certiorari, and the road in the meantime has been opened and worked upon, an allocatur will not be granted. And if one has been ordered, under an ignorance of such facts, it will be dismissed with costs whenever those facts shall be brought to the knowledge of the court.
    
      On a rule to show cause why the Certiorari should not be quashed, as improvidently allowed, &c.
    
      Reading for the defendant in Certiorari, moved to make the rule absolute.
    
      Hartwell, contra.
   Opinion of the Court, by

Hobnblowek, C. J.

This writ was allowed in open court, upon a suggestion by counsel, that the road had not been laid out as applied for ; but in a manner so different from the notice, petition and order of the court appointing surveyors, as to be a surprise upon the prosecutor, and other persons, over whose lands the road had been laid. It now appears, upon reading the affidavits taken in the cause, and upon recurrence to the record, that the road was laid out in the mouth of August, 1840, and that the surveyors by whom it was laid out and returned, directed it to be opened on the first of April, 1841: thus allowing seven months for persons opposed to the road, or dissatisfied with its location, to present their objections to it, by Certiorari, or in any other legal manner. Yet the prosecutor suffered three terms of this court to intervene, and laid by until May term, 1841, before he applied for an allocatur. In the meantime, the road had been opened by the overseer of the highway at the expense of the district, nearly if not quite, its whole length.

If these facts had been disclosed to the court, upon the motion for an allocatur, the court in its exercise of a sound discretion, would not have allowed the writ; but would have left the complaining party, to the mode pointed out by the statute, for getting an unnecessary or improper road vacated or altered. Upon the principles adopted by this court, in The State v. Woodward, 4 Halst. 21, and Haines v. Campion, 3 Harrison 49, we are all of opinion, that the Certiorari in this case, be dismissed, with costs, as improvidently issued.

Certiorari dismissed.

Cited in State v. Wood, 3 Zab. 563; State v. Water Comm’rs J. C., 1 Vr. 250; State v. Woodruff 7 Vr. 205.  