1. The records of the county commissioners are sufficiently full for the purposes for which they were introduced, and are to be taken to establish a town way in Lawrence, located by the order of the county commissioners as the same is stated to be located and described in the said order. A distinction has prevailed as to ways located upon a report by select*127men and acceptance by the town, and a location by county commissioners ; and as to the latter, if these locations are sought to be avoided for reason of errors therein, a certiorari, for the purpose of having the same quashed, is the proper remedy.
2. The further inquiry is as to the effect of the city charter of Lawrence, and whether that superseded all further jurisdiction of the county commissioners, and incapacitated them from making the order of April 12 1853, locating and establishing this way. The city charter was enacted by the legislature on the 21st of March, and accepted by the inhabitants of the town of Lawrence on the 29th of March 1853. For many purposes, therefore, this city charter became effective before April 12. If it was so, as to a question of a town way then pending before the county commissioners as this was, then the commissioners had lost their jurisdiction and their order would be a nullity. By § 24 of the city charter it was provided, that “ all town-officers now in office shall hold their places until this act shall take effect and their successors are chosen and qualified.” ' But there was no election of city officers until April 18, and no organization of the city government until May 10 1853. The case stands thus, therefore: the county commissioners lawfully acquired jurisdiction of the subject of this town vtay by a petition presented to them in July 1852, alleging that the selectmen of Lawrence had unreasonably refused to lay out and establish it, and the commissioners having adjudged the facts thus stated to be true, and having first proceeded tó view the premises and hear the parties, on the 12th of April 1853 established the way.
The court are of opinion that, although prospectively the city charter gave to the mayor and aldermen, with the concurrence of the city council, the exclusive power to lay out ways in Lawrence, yet, before such tribunal in fact existed, and while the selectmen were by law continued in office, and the city government was wholly unorganized, the jurisdiction of the county commissioners over a case then pending before them was still retained by them, and they might properly proceed to make their final adjudication as to the same in the manner they have done.
3. We do not think the form of the order of the county com*128missioners “ to the town of Lawrence ” rendered it invalid, the case pending before the commissioners being so described, and the city being required by its charter to assume the duties in this respect that had previously devolved on the town of Lawrence.
4. Nor was any acceptance of the completed road by a judicial act of the commissioners necessary to sustain this defence Bliss v. Deerfield, 13 Pick. 162.
5. The rejection by the court of the evidence offered by the plaintiff in reply, after he had presented his case and the defendants had made their reply thereto, furnishes, under the circumstances, no ground for exceptions. Though the plaintiff might originally have presented his case before the jury as a claim for damages for trespasses committed by the authority of the city without the limits of the located way, he did not choose to do so, but offered evidence of a trespass only co-extensive with the limits of the way; and in reply to this the defendants offered their evidence. " After the evidence on both sides had thus been introduced, it was a matter of discretion with the court whether the plaintiff should be allowed the privilege of introducing evidence of other trespasses distinct in their character, and which might have been introduced in chief, if competent at all. For reasons satisfactory to the presiding judge, he refused to open the case for such evidence; and no exception lies to such ruling. It is quite apparent that the questions upon such claims would differ from those for acts within the scope of the lawful authority of the town, and would present the issue as to the extent to which such acts of servants of the town could charge the town, although individually the actors might be liable as trespassers. Exceptions overruled.