The relator seeks to review not only the proceedings of the commissioners to assess damages, but also those of the commissioners of highways in laying out the road. The order laying out the road was made and filed in March, 1872, and nearly two years had elapsed from the filing of the order before the writ was applied for, a delay which under the circumstances of the case makes it proper for us to quash the writ.
A party ought not to lie by and impose upon the town the expenses of appraising, assessing and collecting damages and then attempt by *135certiorari to annul the proceedings in laying out the road. He should have applied for the writ promptly, or what was the most appropriate remedy, he should have appealed from the order laying out the road. • For these reasons, the writ should be quashed so far as relates to laying out the road.
As to the assessment of damages, laches are not imputable to the relator, but his objections to them are so technical as to be almost frivolous. The only one worthy of consideration is that one of the commissioners of highways who applied for the assessment of damages was himself one of those whose lands had been taken for the road.
My recollection is that this general term has held that a commissioner of highways is not disqualified because he owns lands over which he unites with other commissioners in laying out a highway. Commissioners of highways, like assessors, must act in matters in which they have a personal and pecuniary interest; roads must be laid out and taxes must be assessed, and the injustice that may be done must be borne or roads must cease to be laid out and taxes assessed.
The law permits towns to elect one highway commissioner; if the public interest demands a highway laid out over his land, how is it to be done if he cannot act ? The statute makes no provision for substituting any other officer or person in his place.
If, however, ■ we are wrong in this, still it is in our discretion whether we will grant the relief sought by this writ and we think mischief instead of good would result from setting aside the proceedings of either set of commissioners.
The writ of certiorari is quashed, with costs to be paid by the relator.
Writ quashed.