
    Peirce & a. v. Portsmouth.
    Upon an appeal by land-owners from the laying out by selectmen of a highway, the town and the original petitioners have distinct interests which entitle them to make separate defences. Notice of the appeal need not be given to the original petitioners when the first petitioner appears as counsel for the town.
    Upon such appeal the decision of the selectmen will not be adjudged void, as of course, for error in their proceedings, but the petition may be referred to the commissioners.
    Appeal, by land-owners, from tlio decision of the mayor and aider-men of Portsmouth altering a highway, and from the assessment of damages. The appellants allege that no legal notice of the hearing was given to them, and pray that the decision, for that reason and because of other material defects, may be reversed. The original petitioners object that they had no notice of the appeal. Questions of law reserved.
    
      Page, for the appellants.
    
      Hackett, for the defendants.
   Smith, J.

The statute requires notice to the town or city through which the road may pass, and such other notice as the court may order. Gen. St., c. 63, ss. 2, 10. The city of Portsmouth, being interested in the question of the appellants’ land damages, and in the cost of altering the road and keeping it in repair, is a party in the appeal. Burnham v. Goffstown, 50 N. H. 560, 563.

The original petitioners continue to be a party after the appeal. Before' the appeal, the first petitioner was the representative of the others, for the purpose of receiving notice. Gen. St., c. 61, s. 2. And as such notice to other parties than the city is to be given as the court may order, the court might regard notice to the first petitioner as sufficient. In this case, the first petitioner, being the counsel of tlie city, had all the knowledge of the appeal that he would have obtained from a notice given him. And the subject of notice to the petitioners being left to the discretion of the court, no formal notice to any of them was necessary.

The original petition is not necessarily quashed for error in the proceedings before the appeal; but the whole case, so far as it is before us, is referred to the commissioners, who are to consider the matters in regard to which the appeal is taken ; and upon their import, the decision of the mayor and aldermen may be affirmed, modified, or reversed. Gen. St., c. 63, ss. 10, 12; Underwood v. Bailey, ante, 59.

Case discharged.

Doe, C. J., did not sit.  