
    George Hewes and Others v. Town of Andover and Others.
    In case of a petition to the supreme court for a highway extending through two or more counties, it must appear from the petition that the petitioners are freeholders and inhabitants of the towns, or vicinity, through which theyoad is to be laid.
    An amendment of a defect in this respect will only he allowed on terms ; and the amendment can only be made by the petitioners themselves.
    No hearing will be had upon the merits of an application to the supreme court for the laying a highway, until the coming in of the report of the commissioners,
    Petition for the appointment of commissioners to lay a highway through a portion of Andover, in Windsor County, through Wind-ham and Londonderry, in Windham County, and through Winhall into Peru, in Bennington County. The petition commenced, “the undersigned petitioners come, and represent,” &c.
    A motion to dismiss was interposed, assigning as a reason that it did not appear from the petition that the petitioners were any of them freeholders, or inhabitants, of the towns, or vicinity, through which the road was to be laid.
    
      Tracy Sf Converse, in support of the motion,
    cited Rev, St. 129, § 39 ; 130, § 34; 132, § 44.
    
      S. Fullam for petitioners.
   Curia, Per Redfield, J.

The statute requires that a petition addressed to this court, asking for a new highway, should be signed by at least seven freeholders of the town, or vicinity, expected to be affected by the road. In the present case the petitioners do not so describe themselves. We therefore think that the petition, on the face of it, is insufficient.

It is necessary that the facts, which are > indispensable to the jurisdiction of this court in these sessions matters, of which the laying of highways is peculiarly one, should appear upon the face of the proceedings. Unless this is so, the court will not entertain the application. This point has been before decided by the court, on the last circuit, in one of the northern counties. We do not ordinarily dismiss the petition for defects, if they are amendable; but in the present case, if an amendment is allowed, it will be by paying the costs of the term as of a judgment, and taking no costs; and the amendment could only be made by the petitioners themselves.

The counsel wished to know of the court, whether, in such case, any hearing could be had upon the case before the appointment of the commissioners.

The Court said, that, of late, no hearing upon the merits of the application, when it was to lay a new road, could be had before the court, until the coming in of the report of the commissioners.  