The Court do not consider the statute of 1825, as abrogating the rule. The requirement of the act, that the report be filed with the clerk, fifteen days before the session of the court, is consistent with the rule of Court, and tends to facilitate a compliance with it. Nevertheless, this case is distinguishable from other cases, and a majority of the Court are of opinion, that the rule upon the petitioners ought to be made absolute, under a rule that they be taxed with no costs for opposing the acceptance of the report, in case it be rejected.
The rule was made absolute.
On a subsequent day of the term, objections having been filed, the cause came on for a hearing, when it appeared from the report, that the committee say therein, (among other things,) that they have laid the road, and return a survey, (which was annexed to the report;) but that the information obtained from those interested was so very contradictory that they were unable to ascertain whether the publick utility required’ the laying of the road or not.
J. P. Williams,, and Chs. Marsh, for the petitioners. J. N. Cushman, and IT- Everett, contra. Skinner, Ch. J.We consider that we are entitled to the opinion of the committee. 11 appears they have not spent their judgment upon it. I, for one, think the report ought to be referred back, for the committee to certify their judgment of the propri-ef;y 0f establishing the road.
Prentiss, JI think, that though the committee have surveyed the road, their report goes rather to negative an opinion of its utility, than otherwise. It ought to appear affirmatively that the road would be useful.
So, the report was recommitted to the same committee, with instructions to report specially, their judgment of the utility of the road.