The first three objections, and the first clause of the fourth, relating to the form of the petition and to the preliminary proceedings, were waived by the reference of the petition to the commissioners without objection after appearance by the defendants. Hardy v. Keene, 54 N.H. 449; Steele's Petition, 44 N.H. 220; State v. Richmond, 26 N.H. 232, 242. As a general rule, objections should be made at the first opportunity, to avoid unnecessary expense and delay. A party cannot fairly avail himself of an objection held in reserve, which seasonably urged would have avoided the useless expense of an unsuccessful attempt to sustain his case on other grounds; and ordinarily objections not insisted on at the earliest time when they can be presented are regarded as waived.
It was not necessary, as matter of law, that the selectmen should lay out the highway subject to gates or bars across it. They were not required to lay-it subject to gates unless they deemed it proper and expedient. Laws 1848, c. 742, s. 1; Laws 1850, c. 957, s. 1; C.S., c. 52, ss. 12, 13; Gen. Laws, c. 67, s. 14.
The first and fifth objections are not well founded in fact. There is no apparent uncertainty in the petition as to the termini of the highway prayed for. It appears that the bounds described in the petition were set up before the original petition to the selectmen was drawn, and that they were pointed out at the hearing before the commissioners as the termini intended and described in the *Page 209 petition. Nor does it appear that the termini of the highway as laid vary from those named in the petition. It is not necessary that they should be described in the language of the petition; it is sufficient if they are substantially the same in fact. Proctor v. Andover, 42 N.H. 348, 354; Stevens v. Goffstown, 21 N.H. 454; Smith v. Conway, 17 N.H. 586.
Exceptions overruled.
FOSTER, J., did not sit: the others concurred.