By the Court, By the 1 R. S. 511, § 63, the person applying for a road shall cause notice in writing to be posted up at three public places in the town, specifying as near as maybe the route of the proposed high-way, and the several tracts of land through which it is proposed to be laid. § 65. The twelve freeholders, if of opinion that the highway is necessary and proper, must suscribe a certificate to that effect, which shall be delivered to the commissioners of highways. § 67. If the commissioners shall determine to lay out the road, they must make out a certificate, “ describing the road particularly by routes and bounds, and by its courses and distanced § 95, p. 515. If the judges reverse the decision of the commissioners, refusing to lay out a road, they shall “ lay out” the *331road applied for in the same manner in which the commissioners are directed to proceed. It is apparent from these provisions, that the commissioners and judges are not hound down to any definite line of road ; and that they ma y,and indeed must exercise a reasonable discretion over the subject.
The route to be designated by the applicant is quite general, and was so intended by the statute; the legislature doubtless acted upon the idea that the judgment of the commissioners would be better than his, and the public interest more likely to be consulted by allowing them some discretion. The applicant designates the general course desired ; the commissioners the particular route. Some discrepancy will be always likely to exist; indeed it would be difficult, at any time, to regard the former as much of a test by which to determine the correctness of the latter. The freeholders act upon the notice of the applicant and general description of the route [ *332 ] therein, and have no authority to locate *it with greater particularity. They determine whether such highway is “ necessary and proper.” § 65. The above views afford an answer to all the offers, in the course of the trial, to prove that the judges laid out the road on a route different from that described in the notice of the applicant and the certificate of the freeholders. We do not say but the departure of the judges or commissioners from the general route upon which they are called to act, may be so glaring and flagrant, as to warrant the court in holding that they have exceeded their jurisdiction; but we are not to presume thus much from the mere offer to show a variation. The extravagance of the departure should be shewn, and to be of such charaacter that the court would be compelled to regard the proceeding in the same light, as if these officers had laid out the road in the absence of the preliminary steps requred by the statute.
The learned judge was also right in refusing parol evidence to shew that the route upon which the assessment of damages was made different from the route of the road laid out by the judges. The proposition conceded that no discrepancy in this respect appeared from the records of the two proceedings; indeed, any such discrepancy was allowed to be shewn. The statute does not require the jury to specify the route in their verdict, with the particularity of the survey by the judges or commissioners. Any'description which will designate it, and shew that the assessment was for damages thereon, is all that can be required. The court must then assume that the jury confined their examinations to the true line, and regard the verdict, as in other cases, conclusive until set aside. § 69, 70, 71, 72.
The order of the judges laying out the road was produced by the defendant with a view to shew it void, as not made in compliance with the statute, which requires that the road shall be described by “ routes and hounds, and by its courses and distance.” The judges, after filing their order, amended it in this respect; but I am of opinion the first order was well enough. It *332fixed thé two termini, and several intermediate points by routes and bounds, ‘ and throughout gave the courses and distance. It failed to give monuments at the termination *of each course ; nor was this irn- [ *388 ] portant for any necessary or useful purpose. There could be no difficulty in ascertaining the route from the survey as given in the order ; and if any clerical errors were committed in the first order, I do not perceive any objection to a correction of them by the judges •; certainly, the proceeding ought not to be rendered nugatory for any such mistake.
The defendant offered to prove by parol, that the plaintiff’s damages were assessed on the route as described in the amended order of the judges, and that the same as appeared by an inspection of the two orders, passed over the land of the plaintiff in distinct and different placés. The judge refused to receive the evidence, and the defendant now objects that in this he erred. One answer to this objection is that the first order was well enough, and may be regarded as conclusive in this collateral proceeding, until regularly vacated ; and we have before said, that parol evidence was inadmissible to prove that the assessment was on a different line. The judge offered to allow this if it could be shewn by producing the certificate of the verdict. Another is, that on a careful comparison of the two orders, the variation of the line, if any, must be trifling. The route, as is obvious, is substantially the same in both.
An objection was made when the plaintiff rested, that he should have proved the preliminary proceedings instead of beginning with the order from the commissioners to remove his fences, and procure the assessment of his damages. It seems to me that this objection oüght not to be permitted from one of the commissioners after such an order and proof of the subsequent proceedings. It recited, and recognized the adjudication of the judges in laying out the road as the ground of the notice, which presupposed the regularity of the previous steps required by the statute. In my view, the proceedings, as spread out before us, fail to shew a case of serious irregularity, much less of want of jurisdiction, the only ground upon which a defence can be pretended to this action.
Eut I am inclined to think, that even if want of jurisdiction could have been shewn, it ought not to have been admitted *as a [ *334 ] defence. The statute, after prescribing the mode of laying out roads, assessment of damages, approbation, and warrant of board of supervisors, and collection of the money, provides that it “ shall be paid to the commissioners of highways of the town, who shall pay to the owner the sum assessed to him,” &c. It appears to me no discretion was left; the sum was assessed and levied expressly for “ the owner,” and received by the commissioners as his money. I do not see why the collector might not as well refuse to pay the money to the commissioners, upon some supposed defect in the assessment, as the commissioners refuse to pay it to the owner. ’ *334These officers are the mere conduits through whom the money passes. If the owner cannot enforce the money out of their hands, who can ?
New trial denied.