The opinion of the court was pronounced by
Williams, C. J.— We think the auditors decided correctly in this case on the naked question of law on which their report was founded. Proprietors of common and undivided lands are made a corporation for particular and limited purposes, the statute making them such must regulate their proceedings, or at least they cannot act in contravention of this statute. These meetings must be warned in the manner directed. — The subjects to be acted on must be notified in the warning and published as directed, and those proprietors who do not feel any interest in the subjects to be acted on, will neglect to attend. The commencement of suits for trespasses on their common land and the appointment of an agent to prosecute those suits which might involve the proprietors in a great expense, and subject them .to the payment of large sums of money, are subjects which the proprietors could not act on, unless at a meeting warned for that purpose. The appointment of the agent therefore, who employed Mr, Woodbridge, not being *207made at a meeting duly warned for that purpose, was unauthorized.
But it appears from his account that a number of suits were commenced; that they were pending a long time, and it is urged that judgments have been rendered for these proprietors in suits instituted by direction of the agent, and that they must be considered as acquiescing in the doings of the agent. It is true that many votes of proprietors which were not legal when passed may become so by the acquiescence of the proprietors in the vote. Thus a division made by vote of proprietors, though not made in pursuance of the statute, a vote laying out a public square, as was done by the proprietors of Burlington, may become valid by the subsequent assent of the proprietors, testified by their conduct, as much so as if legally made in the first instance.
In this case, if the proprietors have acquiesced in the doings of the agent, have reaped the benefit accruing from the suits he has brought, knew that these suits were prosecuted for their common benefit, and took no measures to testifiy their dissent to his proceedings, they may so far have ratified his doings that they will be as binding upon the proprietors as though he was lawfully appointed.
There are not, however, sufficient facts found by the auditors so that we can legally infer their acquiescence ; and yet there are enough to induce us to believe, that sufficient do exist to justify this inference. We have sometimes in the action on book situated like the present, where it is apparent that all the facts are not "found so that we should do injustice by accepting the report, been induced to reverse the judgment with a view of obtaining a further report; and we think this is a case requiring us so to do.' The judgment of the county court will therefore be reversed, and the cause recommitted to the same auditors to report further on the following particulars:
1st. Who are the proprietors?. 2d. Where do they reside? 3d. How many actions were brought by the agent ? 4th. What were the extent and nature of the trespasses sued for ? 5th. What trials were had in the action ? 6th. What was the result of the actions brought, and what disposition has been made of the avails ? 7th. Have ¡jpy other measures been taken by the proprietors to sue for the same trespasses ? 8th. Any other fact tending to show an acquiesence of the proprietors in the proceedings of the agent or a ratification- thereof.