The first error assigned, is, that the petition, on its face, is insufficient. No defect was pointed out, on the tria!; and we have discovered none, since.
The second error assigned, is, that the county court had no right to refer the petition to the county commissioners, inasmuch as it does not appear but the parties agreed as to the judgment to be rendered. The town of Harwinlon regularly appeared in court, and agreed to the reference of the petition ; which we consider as equivalent to a finding, that the parties did not agree as to the judgment to be rendered ; for why else did they agree to a reference ? Besides, a reference is a thing of course — made peremptory by statute, “unless the parties shall agree.” If then, they really agreed, the record should show it; the burthen of proof is on the plaintiff in error ; and it is not enough for him to say, the record does not show, that they agreed. We think, as already stated, it is fairly to be inferred from the record, that the parties did not agree. The contrary certainly does not appear. So too, the objection comes too late, after the petition was referred to the commissioners, the second time, by mutual consent.
The third error assigned, is embraced in the second, as we understand it ; and is therefore answered, by what we have already said.(a)
The fourth error is, that the county court, upon the hearing of the remonstrance to the commissioners’ report, refused to hear J. J. Gaylord, offered by the defendants, to testify, that there was a better route for a road, than the one laid out. The question of necessary highways, and where they can best be laid, belongs exclusively to the county cominis-*528sioners ; and why then should the county court hear testimony on these points ? The language of the statute is, “ and no trial as to the necessity and expediency of laying out or altering such highway, shall be had before said county court.” To have received the testimony would have been useless, as no question was before the court. If the evidence was offered to show, that the commissioners acted corruptly, or erroneously upon their own principles, and so, the report should be rejected, we think the bill of exceptions fails to present that point, with sufficient clearness for us to act; nor do we mean to say, the county court had clear jurisdiction to revise and reject the report, even if the question had been fairly presented.
The fifth error is, that the county court did not answer the whole issue closed. We think a careful examination of the record will show this objection is not well founded. All issuable matter is decided, by the court, in its determination.
These are all the errors especially assigned in the writ of error; and of course, all we can with propriety decide. The argument, it is true, took a somewhat wider range ; but were we to follow the counsel, our decision would not be in any degree changed ; for the further objections are either founded in a misapprehension of the facts on the record, or are questions of law, readily and satisfactorily answered.
In this opinion the other Judges concurred, except Waite, J., who was not present.Judgment to be affirmed.
In the assignment of errors, the third error is, “ that it does appear, from said record, that said county court had no power to refer said petition to said county commissioners, at its April term, 1846.”