The opinion of the Court was delivered by
Sergeant, J.The material exceptions to the decree of the Court of Quarter Sessions in this case, which are relied upon, are, first, that the Court of Quarter Sessions had no jurisdiction over this road, so as to be authorised to vacate it. Second, that the proceedings of the viewers were erroneous and invalid.
1, The power of the Court of Quarter Sessions to lay-out and *445vacate roads or streets in boroughs, is now regulated by the act of the 13th of June, 1836, which in the 18th section, gives to them power to vacate the whole or any part of any private or public road which may have been laid out by authority of law, whenever the same shall become useless, inconvenient and burthensome. The 22d section contains a proviso 'that nothing, contained in the act should be construed to give authority tó any of the Courts of the commonwealth, to vacate any lane, street or highway within any city, borough, town-plot, or any town or village laid but by the late proprietaries, or by any other person, and dedicated to the public use ; and it is alleged that this was a street within the borough of Allentown laid out by the owner of the' ground on which the town was built. It is a sufficient answer to this to say, that it nowhere appears in the proceedings that this was the case. On the contrary it is spolcen of in the proceedings as a road which had been laid out in the town of Northampton, (formerly called Allentown.) If the fact was as is alleged by the complainants, it ought to have been exhibited to the Court below by proof. That not having been done, this Court will presume that it was within their jurisdiction. In the case of the Baltimore Turnpike, (5 Binn. 484,) it was held that this Court will suppose the place where the damage arising from the opening of a road happened, w”as within the jurisdiction of the Court of Quarter Sessions, Unless it appears to the contrary by the record.
• 2. There is certainly a blunder in the proceedings below. The petition prayed an order to vacate the road, which the Court granted. The order then recited the petition and its prayer, .the appointment of viewers, and their duty to be sworn or affirmed; and then- goes on to order them to view the ground, and if they ¿greed there was occasion for such road, to proceed to lay it out. Annexed is the oath of the viewers to perform the duties enjoined on them by the order; and then they report, that in pursuance of the order, they had viewed the said road, describing it, and that it was in their opinion, useless, inconvenient and burdensome, and ought therefore to be vacated. This report the Court confirmed. There can be no doubt if the objection to the regularity of this proceeding had been taken below and was founded in-fact, it must have prevailed. But the question is, whether the parties can lie by, omit to object below where the truth of the doings of the viewers could have been ascertained, and then come here and make the objection for the first time: for though two exceptions were filed below this was not one of them. We think this cannot be done ; that the .parties have waived their objection to what may-have been a mere misprision of the clerk in drawing up the order, perhaps in the hurry of business.
Decree affirmed.