WINDSOR,

February,

Furthermore, this would contravene the decision of this

1842. court, that a sum allowed and returned by the commissionAllen, adm. of ers, and appearing on the probate records, is as a judgment Edson, of a court of competent jurisdiction, and cannot be controFletcher et al. verted. Woods, adm'r, v. Pettes et al. 4 Vt. R. 556.

v.

The act of the defendants, in presenting their claim before the commissioners, was the commencement of an action which, by law, necessarily brought all mutual claims before that board, constituted by statute the proper and the only forum to decide these claims, subject to a rehearing only on an appeal to the county court in the way pointed out by the same statute; and the objections filed by the administrator, and notice to these claimants, operate as an appeal by them, which they must carry to the county court, with a declaration upon their claim, which carries all the mutual claims to the county court; and their neglecting thus to carry up their case works a forfeiture of their claim, but no forfeiture of the rights of the administrator; and, as we think, his claims, allowed by the commissioners, cannot be controverted after this failure to enter the case in the county court; and the administrator has no right to neglect attending the county court, supposing it possible that these creditors would neglect to bring up the case; but he must, at his peril, attend and be in readiness to meet the case, and defend against the claim of the creditors, and support his own claims, if the case is duly entered; and he is entitled to an affirmance of the decision of the commissioners with his cost of thus attending the county court.

If it were true, and known to be so, that the decision of the commissioners, in circumstances like these, would establish the claim of the administrator beyond controversy; still, the administrator is not obliged to run the risk of the result without knowing whether an entry is made or not; nor ought he to lose his cost of thus attending the county court to learn the state of things, and do what he finds it his duty to do.

We believe this case, under the regulations of the statute, as nearly resembles a pauper case as any thing known in our laws. The order of removal is the commencement of an action by the town making the order against the town to which the removal is to be made. An appeal is taken. This

2

v.

does not vacate the order of removal; it only lays the foun- Windsor, February, dation to vacate it on a trial of the appeal. The plaintiff 1842. town appears to support their order, but, the appeal is not Allen, adm. of entered. If they might go home, and consider their order of Edson, removal safe, they are not obliged to do so, but may, and Fletcher et al. usually do, file their complaint and procure the affirmance of the order, with the cost of the county court. Upon the similarity of the cases we consider that, whether the decision of the commissioners, allowing our claim, under all the circumstances which have occurred, stands unimpeached or not, whether its validity and permanence required an affirmance by the county court or not, we were right in making our complaint, and were entitled to an affirmance with our costs.

The more I examine the statute the more necessary it appears that the ninety-third and ninety-fourth sections of the statute, pages 353-4, should be construed as making the appellant, and the person whose claim is objected to, one and the same in all stages after the appeal or objection is taken. Gwillim v. Holbrook, 1 B. & P. 410.

Tracy & Converse, for defendants.

The law provides for appeals from probate courts and from commissioners. Statute, Slade's comp. p. 353, 93, 94. The appeal must be to the "next term," and in case the appellant shall fail to enter his appeal, his claim shall be barred. Woodward v. Spear, 10 Vt. R. 420. Love v. Estes et al., 6 Do. 286. So in case of objection by the administrator to the allowance of a claim against the estate. The claim thus objected to shall be barred.

There is no provision for entering the appeal at any subsequent term, except when the appellant is prevented from "taking or entering his appeal by fraud, accident or mistake. Stat., Slade's comp. p. 116, § 1.

But such is not this petition. The court had no power to grant the prayer of the petition. If they had authority to do any thing, it must only be to allow the whole case to be entered on the docket, and tried upon its merits.

The court had no authority to award costs to the complainant. If there is any error in relation to costs it consists in not allowing costs to the defendants.

WINDSOR, February, 1842.

v.

Fletcher et al.

The opinion of the court was delivered by WILLIAMS, Ch. J.-The defendants, in consequence of their Allen, adm. of neglect to enter and prosecute their claim against Edson's Edson, estate, in the county court, in pursuance of the provisions of the statute, are forever barred from any recovery thereon. The term of the court, to which appeals from the decisions of the commissioners on that estate were to be taken, and at which the defendants should have prosecuted their claim, was held in May, 1840, and at that term no proceedings were had, either by them or the administrator. But, at the November term of the same court, the administrator presented his complaint, praying for an affirmance of the allowance made by the commissioners in favor of the estate, with costs. Whether, in any event, the administrator would have been entitled to such an affirmance, or what is to be the effect of the proceedings before the commissioners, and the subsequent proceedings on the claims in favor of the estate, we are not called upon to decide. If the administrator could, in any event, prevail on this complaint, it should have been preferred at the term of the court held in May. So far as it was either an appeal from the commissioners, or in the nature of an appeal, it should have been prosecuted at that term of the court; and if, in consequence of the neglect of the creditors, the administrator could enter a complaint, either for an affirmance of the allowance in favor of the estate, or for his cost, it must have been presented to the court at that term of the court, or the whole proceedings were discontinued. The entry of the complaint at the November term, as of the preceding term, cannot prevent this consequence. The whole proceedings were discontinued by the failure, both of the creditors and the administrator, to take any measures in relation to their claims at the May term. The county court were, therefore, right in dismissing this complaint, and their judgment is affirmed with cost.

LEICESTER EMERSON and WIFE v. the TOWN OF READING.

WINDSOR, February, 1842.

Emerson

v.

Town of

A land owner, through whose land a public road has been laid out by the selectmen, cannot legally commence proceedings before a justice of the peace, for the assessment and recovery of damages, under the act relating Reading. to highways, passed November 15, 1820, until after the selectmen shall have left in the town clerk's office, for record, their certificate that the road has been opened.

If such land owner commences such proceedings before such certificate is left in the town clerk's office for record, and causes his damages to be assessed, and the justice issues his order therefor, the proceedings are void, although the adverse party was duly notified.

THIS was an action of debt, in which the plaintiffs declared, in substance, that heretofore, to wit, on the 22d day of November, 1835, the selectmen of the town of Reading laid out a road through the plaintiffs' land in said town and caused a survey thereof to be recorded, and afterwards, to wit, on the 20th day of May, 1839, without tendering to the plaintiffs, before opening said road, or at any other time, any recompense for the damages sustained by the plaintiffs in the premises, opened said road for public travel, and said road had ever since been open and publicly travelled; that the plaintiffs, being dissatisfied because no damages were tendered or paid to them, afterwards, to wit, on the 24th day of June, 1839, and within sixty days after the opening of said road, by petition, in writing, made application to Allen Wait, a justice of the peace residing in Windsor, a town adjoining said Reading, in the same county, for the appointment of a committee to appraise the damages sustained by the plaintiffs in consequence of the laying and opening said road; that said justice thereupon issued a citation to the said selectmen to appear before him at M. McKenzie's inn, in Windsor aforesaid, on the 27th day of July, 1839, to agree upon a committee to appraise said damages, which was duly served upon Rufus Forbush, one of the selectmen of Reading, and returned to said justice; that on the day and year last aforesaid, at McKenzie's inn, aforesaid, no one of said selectmen appearing before said justice, and the parties not having agreed in the appointment of a committee to appraise said damages, the said justice then and there, agreeably to the statute in such case made and provided, appointed three judicious and

1842.

Emerson

D.

Town of

WINDSOR, disinterested persons, (naming them) freeholders of said February, Windsor, to appraise said damages, and issued a warrant to them for that purpose in due form of law, directing them to return said warrant and make a report of their doings in the Reading. premises to said justice on the 16th day of September, 1839; that said committee, having been duly sworn to the faithful peformance of the duties assigned them, and having given four days notice to said selectmen of the time when they would attend to the business assigned them, did view the premises and appraised the damages sustained by the plaintiffs, by reason of the laying and opening said road, at thirty dollars, and afterwards, on said 16th day of September, 1839, returned said warrant and made a report of their doings to said justice, and no sufficient cause being shown to the contrary, the said justice then and there established said return and made and subscribed his order in writing, of that date, directing said selectmen to pay to the plaintiffs, out of the treasury of said town of Reading, on demand, the said sum of thirty dollars as damages and the further sum of thirteen dollars and fifty-one cents costs; that, on the tenth day of October, 1839, at said Reading, the plaintiffs presented said order to said selectmen for payment, but said selectmen neglected and refused to pay the same, whereby an action had accrued, &c.

The defendants pleaded that said road had not been opened by the selectmen, &c., and issue was joined to the court. On the trial, in the county court, the following facts were proved.

The road in question was made in the years 1837 and 1838. It was travelled in the winter of 1837-8, and in the winter of 1838-9, but closed in the summer of 1838. In the spring of 1839, the road was continued to be used, and was specified in the rate bill of the highway surveyor of the district in which it lies, as one of the roads to be worked upon. The road was fenced, on both sides, and worked by the surveyor that year; but no certificate of the opening of the road by the selectmen was left with the town clerk for record until after the commencement of the proceedings by the plaintiffs, described in their declaration. The proceedings before the justice were conceded to have been as described in the declaration.