The opinion of the Court was drawn up by
Cutting, J.It appears that the defendants were indicted, at the August criminal term of this Court, 1857, for not keeping in repair a road, which had been laid out as a private way. It is admitted that the road was out of repair, and the defence set up is that, at the annual spring town meeting of 1849, the same was discontinued by the town, upon an article in the warrant for that purpose. There is no record of any proceedings of the selectmen pi’ior to the meeting, except the *608insertion of the article in the warrant, and, for this reason, the counsel for the State contends that the road was not legally discontinued. We have compared the 30th section of c. 25 of the R. S. of 1841, under which the proceedings of the town were had, with the 9 th section of c. 118 of the statutes of 1821, and do not discover any material difference as to the mode provided in each for discontinuing town or private ways. The last named section has received the construction of this Court, in Latham v. Wilton, 23 Maine, 125, where it was held, on a similar discontinuance of a town way, that no previous action of the selectmen was necessary, and we see no good reason for disturbing that decision. We have heard' of no complaint as to the statute, or its construction, and presume there has been none, for it was re-enacted in the R. S. of 1851, in substantially the same words.
According to the agreement of the parties, the verdict must be set aside, and a nolle prosequi entered.
Tenney, C. J., Rice, Hathaway, Appleton, and Goodenow, J. J., concurred.