Opinion
Decided December, 1876.
An appeal from the decision of selectmen laying out a highway may be recommitted after it has been once referred to the commissioners, and their report has been set aside, because it affirmed the decision of the selectmen in which there was error.
APPEAL, from the laying out of a highway by the selectmen, referred to the commissioners, who affirmed the decision of the selectmen. The report of the commissioners was set aside, because the laying out which they affirmed was made subject to certain conditions. Underwood v. Bailey, 56 N.H. 187. The court again referred the case to the commissioners, and the plaintiff excepted.
Benton and E. Fletcher, for the plaintiff.
Ray, Drew Jordon, for the defendant.
The consequences of the error of the commissioners, in affirming the defective laying out, did not extend beyond the action of the commissioners in which the error occurred. It did not reach back to the prior proceedings. The error complained of is therefore fully rectified, and the grievance complained of fully redressed, by setting aside the report, leaving the appeal to be proceeded with as if no hearing had been had and no report made. Hayward v. Bath, 35 N.H. 514. The setting aside of the report was like the setting aside of a verdict for error, which may be obviated by another trial.
Exception overruled.
BINGHAM, J., did not sit.