It has never been the practice of any of the courts of this State to allow costs for exparte affidavits, or *467other evidence offered upon the hearing of merely incidental motions; and no reason is perceived for a change of the practice in this particular. The present case is not distinguishable in any material respect from the ordinary case of affidavits in support of a motion for a continuance. A decision in favor of the motion to dismiss the petition may perhaps end the case, but this is equally true of many other incidental motions. The merits of the case presented by the petition are not in question, upon a motion to dismiss the petition. The ground of the application is, that the merits of the case have been substantially decided upon former applications so often as to render a new application vexatious. The general policy of the statutes is to vest in the county commissioners the sole power of deciding upon the merits of the applications for new highways, or for leave to discontinue those already laid out. It is not desii’able for the courts to claim or exercise any part of the duty belonging to that board. A comparison of the circumstances existing at the time of a former decision with those now existing, may be better made by a tribunal which is bound ■ to visit the localities and examine for themselves. It is not, therefore, desirable to encourage attempts to transfer such investigations to the Courts of Common Pleas. And it should, therefore, be understood that such petitions will be referred to the commissioners, unless it is clearly shown that the petition is vexatious.
Even in cases which are heard upon written evidence laid before the court, evidence taken after an appearance is held incompetent, unless taken with notice. Fitts v. Fitts, Rockingham, July term, 1851.
The respondent’s exceptions are overruled, and the
Costs disallowed.