
    The Commissioners of Highways of the town of Carmel vs. The Judges of the County Courts of Putnam.
    It is no objection in proceedings under the act as to laying out roads, that the certificate as to the propriety and necessity of a road is made by more than twelve freeholders.
    Where the certificate is made by twenty freeholders, the fact that five of the number are of kin to the owners of the land through which the same is proposed to be laid, does not vitiate it.
    The fact that one of the judges (to whom an appeal is made from the decision of commissioners refusing to lay out a road) was one of the freeholders who originally certified to the propriety of the road, is not such an error as will produce a reversal of the doings of the judges, if the objection was omitted to be urged on the hearing of the appeal.
    A general appeal from the determination of commissioners refusing to lay out a road, is a sufficient compliance with the requirements of the statute. " '
    Certiorari relative to the laying out of a road. Twenty freeholders of the town of Carmel made and subscribed a certificate of the necessity and propriety of laying out a road, applied for by one Abraham Everitt, which was delivered to the commissioners of highways of the town, who, after an examination of the route of the proposed road, determined that it was inexpedient to lay out such road and refused to lay out the same. The applicant appealed to three of the judges of the county, by endorsing upon, or annexing to the decision of the commissioners an appeal, in these wórds: “I do hereby appeal from the determination of the commissioners of highways in this matter to A. B. & C. three of the judges of the court of common pleas in and for the county of Putnam, August 26, 1829,” and signed the same. In pursuance of this appeal, the judges convened, and having heard the proofs and allegations of the parties, they reversed the decision of the commissioners, and laid out the road applied for. The commissioners sued out a certiorari, and the judges made a return, setting forth the proceedings in the case, and, among other things, they state that they have been informed and believe, thaX five of the freeholders who signed the original certificate are of kin to the owners of the land through which the road was laid; but that no proof of the relationship was exhibited before them, and no objection made to their proceeding on that account. They also certify that one of their number is one of the freeholders who signed the original certificate presented to the commissioners; but that no objection was taken on that account to their proceeding on the appeal. The fact of the affinity or consanguinity of the five freeholders to two of the owners of the land over which the road was laid, was admitted by a written stipulation attached to the return.
    
      W. Nelson,
    
    in support of the certiorari, insisted that the decision of the judges ought to be reversed, because, 1. The appeal of the applicant for the road does not state the ground upon which it is made, 1 R. S. 518, § 86; 2. The certificate of the necessity and propriety of the road is made by twenty, instead of twelve freeholders, the number prescribed by statute, 1 R. S. 514, § 58; 3. Five of the freeholders being of kin to the owners of the land through which the road was laid, were incompetent to give a certificate, 1 R. S. 514, § 60; and 4. That one of the judges being one of the freeholders, who originally certified to the necessity of the road, and whose judgment was overruled by the commissioners, was not a competent person to review the proceedings of the commissioners.
    
      H. B. Cowles, contra.
   By the Court,

Nelson, J.

The appeal from the détermination 0f the commissioners was equivalent to saying that the > road was necessary and proper, and was therefore a sufficient compliance with the act. The fact that twenty instead of twelve freeholders, certified that the necessity of the road, is no cause for reversing the decision of the judges. Independent of the consideration that this objection comes with a bad grace from the commissioners, who, themselves, acted upon the certificate of the freeholders, there is no force in it. The commissioners have no authority to act until twelve freeholders certify to the necessity and propriety of the road ; but where twenty unite in a representation, twelve of course concur. The maxim that the greater includes the less, applies. Twelve freeholders, not interested in the lands through which the road was laid, not' of kin to the owners thereof, having made the required certificate,'the fact that Jive others, who were of kin to the owners of the land, concurred in opinion with them, does not vitiate the certificate : all the statute requires is that twelve .freeholders shall certify. 1 R. S. 514, § 58. T.he objection that one of the judges who decided the appeal had before passed upon the same question, might be considered as warranted by the provision in the statutes forbidding officers acting in appellate tribunals from taking part in the decision of matters before determined by them, 2 R. S. 275, § 3, had it been urged when the question was under consideration before the judges ; but it was not: the appeal was contested'solely upon the merits, and the commissioners, are now too late tp avail themselves of the objection. It might' have been, and probably was waived. It would promote litigation, and contravene well established principles, now to allow it as well taken. The decision of the judges, therefore is confirmed.  