Commonwealth versus Asa Sheldon and Others, 2 Tyng 188

Upon the application of sundry inhabitants, the selectmen had laid out a certain way, and reported the same to the town, at a public meeting regularly notified and warned, for their approbation and allowance. The town refused to approve and allow it, whereupon the respondents applied to the Sessions, who, without notifying or hearing the town, appointed a committee of three freeholders to lay out the way, if they, upon a view of the ground, should judge it proper so to do.

The committee notified the town and all other parties, and after a full examination and hearing, laid out the way, and made their report to the Sessions, who, after one continuance, and after hearing the petitioners and the town by their respective counsel, accepted the report, and established and confirmed the way.

Whiting, for the commonwealth, had filed an assignment of errors, and after reading the writ of certiorari and return, was about to read the errors, when the Chief Justice stopped him, and observed that upon a writ of error, an assignment of errors, and a scire facias to hear them, was necessary; but upon .a certiorari, an order of notice issues, and upon the return of the record, the Court will inspect it, and if they find errors, they will quash the proceedings. Whiting then suggested the want of notice to the town, picvious to the appointment of the committee to lay out the way, as a fatal error.

Ives, on the other side, conceived that the notice by the committee, to whom the Court had delegated their discretion, was sufficient; and that the appearance of the town before the committee, and after their report, before the Court of Sessions had cured the error, if such it was. But the Court said the statute was express upon the point that the Court of Sessions were not to proceed upon such an application, but after hearing the town thereon . Proceedings quashed