and there was no improper influence shown, and where counsel for both sides stayed at the same house and acquiesced, the report would not be set aside, although the entertainment was handsome and liberal, and without charge. It is not sufficient, to set aside the report, that dinners were furnished to commissioners, when the place appointed for meeting was at the house of the applicant who furnished the entertainment, or if no abuse is shown.1

3

5

If

§ 237. Evidence before commissioners - Admissibility. The commissioners must pass on the competency of evidence. They must regulate the order and course of business before them, and having heard all the evidence on a point that they may deem necessary, may refuse to hear other evidence on the same point. A refusal to give a fair hearing would cause a reconsideration of the report, but they may refuse to hear further cumulative evidence." incompetent evidence has been received, the Supreme Court will not receive evidence to prove that the commissioners did not deem the evidence material, and disregarded the same, but may, on certiorari, quash the proceedings; but the award will not be set aside for technical error. The error should be of such a character as to show that the commissioners have misapplied the principles upon which they were to make their appraisement. Commissioners appointed to

1 Beardsley v. Washington, 39 Conn. 265.

2 The State v. Justice, 24 N. J. L. 413. 3 The State v. Bergen, 21 N. J. L. 342.

• Coleman v. Moody, 4 Hen. & M. 1; Plymouth Road, 5 Rawle, 150. In a later case, in Pennsylvania, not in the Supreme Court (Matter of Magnolia St., 8 Phila. 468), the practice is condemned, as giving the rich and unscrupulous too much advantage.

5 Washington R. R. v. Switzer, 26 Gratt. 661; Central Pacific R. R. v. Pearson, 35 Cal. 247; Jones v. Goffstown, 39 N. H. 254; Hawley v. North Staffordshire Rail. Co., 2 De G. & Sm. 33.

• Jones v. Goffstown, 39 N. H. 254.

7 Petition of Landaff, 34 N. H. 163 (overruling Goodwin v. Milton, 25 N. H. 458); Smith v. Conway, 17 N. H. 586.

8 Troy R. R. v. Northern Turnpike Co., 16 Barb. 100; Virginia R. R. v. Henry, 8 Nev. 165.

view and appraise are not compelled to examine witnesses, although they may; and their refusal to do so is not sufficient ground for reversal. Commissioners are not governed exclusively by the evidence before them, but may be guided by a view made by them; and may be guided by their knowledge of the country, and the wants and wishes of the people, and the ability of the neighborhood to keep the road in repair. The commissioners are not compelled to hear arguments. Arbitrators, under the English Lands Clauses Consolidation Act, may consult other persons, provided they act on their own judgment, but they must not bind themselves to abide by the opinions of such persons.

§ 238. Record of commissioners. The proceedings must show that the commissioners acquired jurisdiction. A record which fails to show that jurisdiction attached, cannot be helped out by intendment or presumption. Such record need not set forth in full all the proceedings had. For instance, the oath of viewers need not be set forth in the report, if the report showed that they took the oath prescribed by law. The proceedings should be reduced to writing, and show the extent of land taken. Commissioners cannot correct errors after assessment filed.10 If the record does not show the irregularities which have been committed in their proceedings, the report may be set aside for that reason." Proceedings in pais by commissioners may be

1 Pennsylvania R. R. v. Keiffer, 22 Pa. 356.

2 Lyman v. Burlington, 22 Vt. 131; Van Wickle v. Camden R. R., 14 N. J. L. 162.

3 Virginia R. R. v. Henry, 8 Nev. 165; Kramer v. Cleveland R. R., 5 Ohio St. 140.

• Commissioners' Court v. Bowie, 34 Ala. 461.

5 Kramer v. Cleveland R. R., 5 Ohio St. 140.

6 Whitmore v. Smith, 29 L. J. (Exch.) 402; Caledonia Rail. Co. v. Lockhart,

3 Macq. H. L. Cas. 808.

7 Miller v. Brown, 56 N. Y. 383.

8 Hannibal R. R. v. Morton, 27 Mo. 317.

Hayes v. Shackford, 3 N. H. 10.

10 The People v. Mott, 19 N. Y. Sup. Ct. 672.

11 Rochester R. R. v. Beckwith, 10 How. Pr. 168.

proved by parol, when no complete record is made and the original papers are lost.1

§ 239. Preserving rulings and evidence. Bills of exceptions to action of commissioners cannot be taken to their proceedings, unless provided by charter or statute.' The irregularities in proceedings can only be proved by parol in case of absence of statute providing for the preservation of the rulings and instructions of the commissioners, or the party presiding over the jury. When such certificates of exceptions can be made, that is the proper and only way of preserving them. It is good practice for commissioners to return the evidence produced before them,1 but a failure to do so does not invalidate the report. In order to comply with a statute requiring report of "proceedings in the premises," there should be, in the report, minutes of testimony, and rulings on all points as to admissibility and rejection of testimony, and also the rules or principles of the decision of commissioners. Commissioners may properly itemize damages, so that the court may understand the finding. They need not itemize the benefits and damages, but may give the excess of damages over benefits. Where bills of exceptions are not allowed to such proceedings, they may be corrected by certiorari.8

§ 240. When report should be made. Report need not be made to a regular term of court. An appeal from such a report does not require any judicial action, and may be made out of regular term-time. When the appeal is to

1 Young v. Buckingham, 5 Ohio, 485.

2 Hannibal R. R. v. Morton, 27 Mo. 317.

3 Allen v. Androscoggin R. R., 60 Me. 494.

✦ Virginia R. R. v. Lovejoy, 8 Nev. 100.

5 Virginia R. R. v. Henry, 8 Nev. 165.

• Central Pacific R. R. v. Pearson, 35 Cal. 247.

7 California Pacific R. R. v. Frisbie, 41 Cal. 356.

Lyman v. Burlington, 22 Vt. 131.

Northampton Bridge, 116 Mass. 442.

be taken at a certain time, the report must be filed so that the appeal may be perfected in time, and the commissioners have no right to postpone their action ;1 and if the opportunity of appealing is lost, the report will, on motion, be quashed.2

3

§ 241. Review of report - Recommitting report. When commissioners are sent back to make their report according to law, the proceedings cannot be called a review of the report, but merely seeing that the report of commissioners was in conformity to law. One review is generally granted to one party, and the operation of sending back the report would not be such a review as the statute contemplates. The court cannot amend the assessment of commissioners, but, on consideration, must approve, reject, or recommit the report. A recommitment is not a failure of the proceedings, within a statute providing that when proceedings have failed a new application could not be made within a limited time. If the report is various and conflicting, the court may in its discretion recommit. The failure of commissioners to find damages for an owner, or to give a fair hearing, are causes for setting aside a report. The same commissioners may make a new report, and, if satisfactory to the court, the same may be approved; and the report may be recommitted even after it has been confirmed, when it is in fact illegal and unjust.10 An application for a reassessment is not in the nature of an appeal, but of a motion for a rehearing, and several owners may

1 Wood v. Commissioners, 62 Ill. 391.

2 Roberts v. Williams, 13 Ark. 355.

Hannibal R. R. v. Rowland, 29 Mo. 337.

6

9

• Matter of Claiborne St., 4 La. An. 7; Rossignac St., 4 Rob. (La.) 357.

5 Towamencin Road, 10 Pa. 195.

6 New Orleans R. R. v. Zeringue, 23 La. An. 521.

7 Patten's Petition, 16 N. H. 277.

8 Central Pacific R. R. v. Pearson, 35 Cal. 247.

Lyman v. Burlington, 22 Vt. 131; Potts's Appeal, 15 Pa. 414.

10 Broadway Widening, 61 Barb. 483.

join in such application. In Virginia, it is considered that, on the setting aside of a report, the commissioners must be newly appointed and re-sworn."

§ 242. How to obtain a review. The proper process of bringing the proceedings of selectmen, city councils, commissioners, and other inferior tribunals, in laying out roads and streets, before a superior court, is by writ of error, certiorari, or mandamus. The proceedings cannot be reviewed on a bill in equity. Either party may show cause against the report, and are not confined to specific objections, and may move to quash the report.5 The land-owner has a right to object to the report, and obtain a reconsideration, independent of statute. He should be permitted to show that the property was not taken for public uses, or that the compensation was wholly inadequate." Affidavits will not be received tending to contradict the report on matters of fact, nor will the commissioners be permitted to stultify themselves by alleging that they signed the report without reading it. The case cannot be reopened before the commissioners after the parties have submitted the matter.8

§ 243. Presumptions in favor of the regularity of action of commissioners. In order to set aside a report of commissioners, something must be shown tending to prove that the principles on which they proceeded were incorrect; but, until that is shown, the presumption is in favor of their adjudication, and their proceedings will be upheld until

1 The People v. White, 59 Barb. 666.

2 Pollard v. Ferguson, 1 Litt. 196.

Baldwin v. Bangor, 36 Me. 518.

Washington R. R. v. Switzer, 26 Gratt. 661.

5 Mitchell v. Thornton, 21 Gratt. 164.

6 Farmer v. Stewart, 2 N. H. 97.

7 Rochester R. R. v. Beckwith, 10 How. Pr. 168.

The People v. Ferris, 41 Barb. 121.

Quincy R. R. v. Ridge, 57 Mo. 599; Matter of Pearl St., 19 Wend. 651;