Eastman, J.
The first exception taken to the acceptance of this report, was not raised till the second day of the hearing before the road commissioners. The notices for the hearing had been signed by Durgin, and served upon the town; the proceedings, by which he had been appointed as a substitute for Hayes, were read before the selectmen, the agent and their counsel, at the time of their assembling, on the first day ; and that day was spent in the examination of the road prayed for, and other routes, and no exception was taken to the competency of Durgin or the regularity of his appointment. Under these circumstances, we might well inquire, were it necessary, whether the town had not waived the right to except to the want of notice upon the appointment of Durgin. Parish v. Gilmanton, 11 N. H. Rep. 293; Stevens v. Goffstown, 1 Foster’s Rep. 454; Gilford’s petition, 5 Foster’s Rep. 124.
But we are not inclined to place the decision of this question upon the ground of waiver, since we think that no notice of the application to fill the vacancy was necessary. By the Revised Statutes, ch. 50 § 6, it is provided, that if any commissioner is interested in any such petition, (relating to roads,) he shall not serve, but the vacancy shall be filled by the other commissioners of the county. By the act of July 2,1846, (Pamphlet Laws ch. 353,) this section of the Revised Statutes was repealed, except as to all petitions [469]*469and matters previously commenced, and the following section enacted instead of it, to wit: “ That upon all petitions relating to roads, if any commissioner or commissioners are interested in any such petition, he or they shall not serve, but the vacancy or vacancies shall be filled by the court of common pleas in which such petition is pending.”
"By the act of June 26, 1850, (Pamphlet Laws ch. 996,) entitled “ An act in addition to the 353d chapter of the laws of this State, approved July 2,1846,” it was enacted “ that the vacancy or vacancies mentioned in the statute to which this is in addition, may be filled by any judge of the superior court, or by any judge of the court of common pleas in the county in which the proposed road is situate, in vacation, as well as by the court of common pleas in term time.”
These are all the provisions upon the subject, and in them we find nothing indicating that any hearing is to be had upon the question of the appointment to be' made, or that any notice to the parties is required. By the Revised Statutes, the commissioners themselves were to fill the vacancy; by the act of 1846, the court were to do it, and by the, act of 1850, a judge is empowered to perform the duty in vacation. It is now a judicial act, requiring no argument or suggestion from the parties, and their rights cannot be affected in any way, when the appointment is made, either by their presence or absence. Indeed, a suggestion by either party in favor of the appointment of any particular person would very likely lead to his rejection, unless agreed to by the other side. Our opinion then is, that no notice of the application for the appointment of Durgin was necessary, and that his appointment was regular and legal.
The second exception is more formidable, but we think, after giving it considerable consideration, that it must be regarded as waived.
Fourteen days before the hearing, the town knew that Durgin had been appointed to fill the vacancy, the notices that were served upon the town having been signed by him. [470]*470On the day of the hearing, the petition and order of the court thereon, the refusal of Hayes to act, the application of the petitioners to Judge Roberts for an appointment to fill the vacancy, the appointment of Durgin, and the certificate of his oath of office, were all read and made known to the town; and Durgin had in fact taken the oath of allegiance on a former occasion. Now we think that if the town ever intended to except to Durgin on the ground that he had not taken the oath of allegiance, it should have been done before the hearing commenced. They were then possessed of all the necessary information in regard to his appointment and qualifications; and the very fact that the oath of office was read over to them, would naturally suggest the inquiry as to the oath of allegiance.
The authorities are numerous, that where a party is aware of the existence of an exception and does not take it at the proper time, he thereby waives his right to take it at all. And although it cannot be strictly said in this case that the town actually knew that Durgin had not taken the oath, yet there was abundance to put them on inquiry, if they did not know it. If the inquiry had been made at the time the oath of office was read over, and the exception then taken, the petitioners would probably have seen to it that the objection was removed before incurring the expense of the hearing. It is possible that the town, seeing that it was an objection that might be cured, but supposing that it would be valid at any time, chose to reserve it till the coming in of the report.
No exception is taken to the personal fitness of the commissioner, and inasmuch as he had once taken the oath of allegiance, and its not being filed may have been the fault of those who administered the oath, and not his, we must regard this exception as technical, and in no way affecting the merits of the case.
The third exception raises the question whether it is necessary for the road commissioners to state in their report [471]*471that they have certified to the town clerks the damages awarded to the land owners; or whether the fact that they have so certified may, if the matter is disputed, be proved by evidence aliunde.
It will be perceived that this is an objection that could very readily be obviated by a re-commitment of the report; for if the damages had been certified, as required by the statute, the commissioners could easily amend the report by stating the fact. But we do not think that it is necessary that they should state in their report that they have certified the damages to the town clerks, although as a matter of practice, it is probably .better that it should be done.
The statute is quite explicit in specifying what the report shall contain. It requires that the commissioners shall state in their report the names of the several owners of land taken for such road, and the manner in which they have been notified ; that a particular description of the road laid out shall be inserted, and an estimate of the expense of making the same; and that the damages assessed to the several owners shall also be inserted, besides other matters. Rev. Stat. eh. 51, §§ 4, 5, 6, 7, and 9. And although it is provided that the commissioners shall certify the damages awarded to such owners, in each town, to the town clerks, yet there is no provision that they shall state such fact in the report. Nor do we discover any necessity for it, or any objection to showing by evidence aliunde that it has been done. The object is to give the towns correct information as to the matter, that the land owners may be settled with.
We think, further, that the necessity of showing that the damages have been certified to the town clerks, can only properly arise upon evidence being furnished by the objecting party, tending to show that no certificate has been filed. The petitioners are not called upon to show that a certificate has been filed with the town clerks, simply because the town takes the exception. Evidence must be furnished by the town [472]
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Eastman, J.
The first exception taken to the acceptance of this report, was not raised till the second day of the hearing before the road commissioners. The notices for the hearing had been signed by Durgin, and served upon the town; the proceedings, by which he had been appointed as a substitute for Hayes, were read before the selectmen, the agent and their counsel, at the time of their assembling, on the first day ; and that day was spent in the examination of the road prayed for, and other routes, and no exception was taken to the competency of Durgin or the regularity of his appointment. Under these circumstances, we might well inquire, were it necessary, whether the town had not waived the right to except to the want of notice upon the appointment of Durgin. Parish v. Gilmanton, 11 N. H. Rep. 293; Stevens v. Goffstown, 1 Foster’s Rep. 454; Gilford’s petition, 5 Foster’s Rep. 124.
But we are not inclined to place the decision of this question upon the ground of waiver, since we think that no notice of the application to fill the vacancy was necessary. By the Revised Statutes, ch. 50 § 6, it is provided, that if any commissioner is interested in any such petition, (relating to roads,) he shall not serve, but the vacancy shall be filled by the other commissioners of the county. By the act of July 2,1846, (Pamphlet Laws ch. 353,) this section of the Revised Statutes was repealed, except as to all petitions [469]*469and matters previously commenced, and the following section enacted instead of it, to wit: “ That upon all petitions relating to roads, if any commissioner or commissioners are interested in any such petition, he or they shall not serve, but the vacancy or vacancies shall be filled by the court of common pleas in which such petition is pending.”
"By the act of June 26, 1850, (Pamphlet Laws ch. 996,) entitled “ An act in addition to the 353d chapter of the laws of this State, approved July 2,1846,” it was enacted “ that the vacancy or vacancies mentioned in the statute to which this is in addition, may be filled by any judge of the superior court, or by any judge of the court of common pleas in the county in which the proposed road is situate, in vacation, as well as by the court of common pleas in term time.”
These are all the provisions upon the subject, and in them we find nothing indicating that any hearing is to be had upon the question of the appointment to be' made, or that any notice to the parties is required. By the Revised Statutes, the commissioners themselves were to fill the vacancy; by the act of 1846, the court were to do it, and by the, act of 1850, a judge is empowered to perform the duty in vacation. It is now a judicial act, requiring no argument or suggestion from the parties, and their rights cannot be affected in any way, when the appointment is made, either by their presence or absence. Indeed, a suggestion by either party in favor of the appointment of any particular person would very likely lead to his rejection, unless agreed to by the other side. Our opinion then is, that no notice of the application for the appointment of Durgin was necessary, and that his appointment was regular and legal.
The second exception is more formidable, but we think, after giving it considerable consideration, that it must be regarded as waived.
Fourteen days before the hearing, the town knew that Durgin had been appointed to fill the vacancy, the notices that were served upon the town having been signed by him. [470]*470On the day of the hearing, the petition and order of the court thereon, the refusal of Hayes to act, the application of the petitioners to Judge Roberts for an appointment to fill the vacancy, the appointment of Durgin, and the certificate of his oath of office, were all read and made known to the town; and Durgin had in fact taken the oath of allegiance on a former occasion. Now we think that if the town ever intended to except to Durgin on the ground that he had not taken the oath of allegiance, it should have been done before the hearing commenced. They were then possessed of all the necessary information in regard to his appointment and qualifications; and the very fact that the oath of office was read over to them, would naturally suggest the inquiry as to the oath of allegiance.
The authorities are numerous, that where a party is aware of the existence of an exception and does not take it at the proper time, he thereby waives his right to take it at all. And although it cannot be strictly said in this case that the town actually knew that Durgin had not taken the oath, yet there was abundance to put them on inquiry, if they did not know it. If the inquiry had been made at the time the oath of office was read over, and the exception then taken, the petitioners would probably have seen to it that the objection was removed before incurring the expense of the hearing. It is possible that the town, seeing that it was an objection that might be cured, but supposing that it would be valid at any time, chose to reserve it till the coming in of the report.
No exception is taken to the personal fitness of the commissioner, and inasmuch as he had once taken the oath of allegiance, and its not being filed may have been the fault of those who administered the oath, and not his, we must regard this exception as technical, and in no way affecting the merits of the case.
The third exception raises the question whether it is necessary for the road commissioners to state in their report [471]*471that they have certified to the town clerks the damages awarded to the land owners; or whether the fact that they have so certified may, if the matter is disputed, be proved by evidence aliunde.
It will be perceived that this is an objection that could very readily be obviated by a re-commitment of the report; for if the damages had been certified, as required by the statute, the commissioners could easily amend the report by stating the fact. But we do not think that it is necessary that they should state in their report that they have certified the damages to the town clerks, although as a matter of practice, it is probably .better that it should be done.
The statute is quite explicit in specifying what the report shall contain. It requires that the commissioners shall state in their report the names of the several owners of land taken for such road, and the manner in which they have been notified ; that a particular description of the road laid out shall be inserted, and an estimate of the expense of making the same; and that the damages assessed to the several owners shall also be inserted, besides other matters. Rev. Stat. eh. 51, §§ 4, 5, 6, 7, and 9. And although it is provided that the commissioners shall certify the damages awarded to such owners, in each town, to the town clerks, yet there is no provision that they shall state such fact in the report. Nor do we discover any necessity for it, or any objection to showing by evidence aliunde that it has been done. The object is to give the towns correct information as to the matter, that the land owners may be settled with.
We think, further, that the necessity of showing that the damages have been certified to the town clerks, can only properly arise upon evidence being furnished by the objecting party, tending to show that no certificate has been filed. The petitioners are not called upon to show that a certificate has been filed with the town clerks, simply because the town takes the exception. Evidence must be furnished by the town [472]*472to make out a prima facie case, before the court will require the petitioners to answer the exception.
The fourth exception is, that the petitioners, at the hearing, read to the commissioners, when objected to by the town, certain propositions in regard to the making of the road.
We are not inclined to depart from the decisions heretofore made in this State, by which it has been held that highways should be laid out only when the public good requires it; and that if any other considerations induce the laying out, it will be illegal. Dudley v. Gilley, 5 N. H. Rep. 558; Dudley v. Butler, 10 N. H. Rep. 281; Petition of Knowles, 3 Foster’s Rep. 193.
But on examining the facts upon which this exception is founded, we do not find that the case is brought within the principle of those decisions. Here was a proposition to make the road, in case it should be laid out. It was read in the presence of the commissioners, but it was subsequently stated to them, by the counsel who read it, that he was satisfied it was not competent evidence, and that they should not consider it as such. It appears, too, that the commissioners did not treat the proposition as evidence, and gave it no consideration in forming their opinion in regard to laying out the road.
It. is not a very uncommon matter for evidence to be introduced to a jury, and subsequently to be withdrawn by leave of the court, upon instructions to the jury to disregard it. And yet a verdict would not be set aside on that account. It amounts to nothing but a mere statement. So the proceeding here cannot, we think, be regarded as any thing more than a statement, which had no bearing upon the minds of the commissioners, in the result to which they arrived. /
It is to be observed, also, that the proposition of Furbish was not of that exceptionable character disclosed in the cases referred to. It was, at most, nothing more than a state[473]*473ment, showing for what the road could be made, should it be laid out. Still, being offered, in the first instance, as legal evidence, the exception would have prevailed, had not the evidence been withdrawn.
There can be no successful objection to receiving the affidavits of the commissioners, showing that the propositions were not treated by them as evidence. From the very nature of proceedings before road commissioners, and the numerous exceptions taken to their reports, the courts must receive their affidavits to show the true state of the facts connected therewith.
The last exception is, that damages were awarded to the administrator of the estate of Jabez Dame, and not to the heirs.
Upon an estate being decreed to be administered as an insolvent one, as was the case here, the presumption of law is that it is insolvent, and that there is not sufficient property belonging to the same to pay the debts. Until it is settled, the héirs have no control over it, and unless it shall eventually prove solvent, no interest in it. An award of damages/%the heirs, before the estate is settled, and judgment upl^B^jfeport by which the award is made, and a payment money in pursuance of that award and judgment, would, if such an award was legal and the estate actually insolvent, take from the hands of the administrator, and, consequently, from the creditors, the amount of the award, and give it to the heirs. And if such an award was legal, there would be no remedy for the wrong thus done to the creditors.
But if, on the other hand, the award is made to the administrator of the estate, who is under bonds for the discharge of his duties, and the legal appropriation of whatever comes to his hands from the estate, he will, if the estate is actually insolvent, apply the amount to pay the creditors but in case it proves to be solvent, he then has the money for the heirs, and no injustice is done to any one.
[474]*474In an insolvent estate, the heirs never come into possession of any of the property by virtue of their heirship. The property belongs to the creditors, and the administrator is their agent through whom it is to come ; and for the purposes of an award of land damages, he must be regarded as the proper person to whom to make it. The administrator is merely passive in the matter. He makes no sale or disposition of the real estate, for he cannot do it without a license from the court of probate. He simply receives the money for the land which the law has taken from his possession. The exceptions must all be overruled and the
Report accepted.