Dewey, J.
Numerous objections have been taken to the proceedings of the county commissioners in the case sought now to be revised on certiorari.
1. The great and leading objection, and the only one which presents any difficulty, or occasion for serious doubt, is that arising upon the course of proceedings required under the Rev. Sts. c. 24, § 4. That section applies particularly to highways, but §§ 71, 75, make it alike applicable to cases of proceedings by county commissioners, on application for the location of town ways, where the selectmen unreasonably neglect to lay them out, or the town unreasonably refuses to approve and allow them. Sect. 4 provides, that “ the commissioners shall hear the parties, either at the time of the view, or at any regular or special meeting, or any adjournment thereof, as they shall determine ; and as soon as may be after [429]*429the hearing, they shall proceed to adjudicate,” &c. The inquiry then arises as to the effect of such adjudication made at the time of the view, or at some special meeting other than the regular term. Is it to be treated as a final adjudication, and a termination of all action by the commissioners, so that nothing more remains to be done, and that, to all intents and purposes, such adjudication has the like effect as an adjudication at a term regularly holden and attended by a clerk to record all orders ; or is the matter acted upon to certain purposes only, and subject to the control and revision of the commissioners at any time before the same is filed for record at the regular term ? Looking at the statute, it is quite apparent that, to some extent, it favors the position, that an adjudication at the time of a view is a judgment, a determination which is made the basis of future action and further proceedings, and of proceedings which are to be commenced before the next regular term. Thus, in § 6, it is provided, that upon an adjudication, made at the view, of the common convenience and necessity of laying out, or of altering or discontinuing a highway, if no person interested shall object, the tommissioners may forthwith proceed to lay out, alter, or liscontinue such highway. These latter acts all imply a final .etermination, already had, of the question of expediency, or vommon convenience and necessity. On the other hand, these pecial meetings in vacation, held at other places than the shire town, and unattended by any clerk or other officer required to record orders and judgments, are certainly of an anomalous character, if the full effect is to be given to decrees made at them, which is given to those made at term, announced to the clerk as such, and by him recorded or noted for record.
The difficulty and embarrassment in the case have arisen from the attempt to unite, in the same board, all the duties formerly performed by the court of sessions at term, and the further duties formerly assigned to special committees, appointed by that court, to make the view and report their opinion of the common convenience and necessity of granting the prayer of the petitioner. While this practice continued, [430]*430it was very simple and easy of application. The committee acted in the vacation, but having no final powers, their duty was to report, and the final adjudication was to be made by the court of sessions, at the regular term.
The' result of the change has been, as we understand, a considerable diversity in practice, as to the manner in which these adjudications have been considered by the commissioners themselves. In some counties they have, in form, assumed to be nothing more than reports; and the course has been, formally to accept them at the next regular term, before they were filed for record. In others, while less formality of presenting the adjudication for a formal acceptance has prevailed, yet the papers and accompanying adjudication are officially returned and entered as the doings of the commissioners, and ordered to be recorded. Admitting this latter mode to be well authorized by the statute, and supposing it to be competent for the commissioners to treat an adjudication, made at the view, as a final adjudication and determination, and that nothing more is required to be done, but to file the same at the next term, and order it to be recorded; the question then is, whether this is the only course of proceeding that can be sanctioned by law. Now it seems to us, that what is to be taken as the final determination and adjudication of the commissioners must depend upon their own course of proceeding, disclosed by the record of their doings. Their decrees and adjudications are to be learned from the record, which is the only legal manifestation of them. Whenever, therefore, the commissioners themselves set forth the proceeding on the view as a mere preliminary adjudication, to be subsequently confirmed and accepted at a regular meeting, and proceed, at such regular meeting, to deal with it as such, and dispose of it as an open question; and all this before any record has been made, or papers filed for record with the clerk, of an adjudication at the time of view; we must understand that the com • missioners,' in expressing their opinion at the time of the view, do so de bene esse, and that it is not to be regarded as final, until so ordered at the regular term. It is competent for them [431]*431so to do; and the only question will then be as to the nature of their adjudication, as indicated by the record finally made up.
In examining this record, although, looking exclusively at the proceedings at the time of the view in May 1844, we might well suppose them to be of the nature of a final determination of the question before them, and that nothing remained but to file the same for record, yet the entire record indicates a different state of things. The record states that, '* at the commissioners’ meeting, July 1844, after hearing the parties on this report, it is ordered that the same be not accepted.” Before placing upon the record their doings at the special meeting at Pittsfield in May, they reconsider the same and reject it. The manner in which the commissioners, in fact, treated their adjudication of May, is quite obvious; and under the view we have taken of the provisions of the statute, it was competent for them to postpone their final action, and to revise their adjudication at any time before the close of the next regular term, if they had not already filed it with the clerk of the court for record, as their final adjudication upon the subject matter. In this way, we may sustain the proceedings in this case, without calling in question the validity of a different course of proceeding already alluded to, viz. making the adjudication at the view, or at some special meeting, and taking no further order thereon afterwards, at the regular term, except to order the same to be recorded.
The provisions of St. 1839, c. 76, are indicative of the course to be pursued, at least in one class of cases of view and adjudication at the time of the view, and in which further action at the next regular meeting is essential to the completing of the adjudication. The case is that of a discontinuance of a highway, upon the view. The statute provides that the commissioners may, at the same time, adjudge that the said way be discontinued and assess the damages, “ and. when a return of said proceedings and adjudication is made, at the next regular meeting of the commissioners, and accepted, it shall be held to be a discont"nuance of such highway.” [432]
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Dewey, J.
Numerous objections have been taken to the proceedings of the county commissioners in the case sought now to be revised on certiorari.
1. The great and leading objection, and the only one which presents any difficulty, or occasion for serious doubt, is that arising upon the course of proceedings required under the Rev. Sts. c. 24, § 4. That section applies particularly to highways, but §§ 71, 75, make it alike applicable to cases of proceedings by county commissioners, on application for the location of town ways, where the selectmen unreasonably neglect to lay them out, or the town unreasonably refuses to approve and allow them. Sect. 4 provides, that “ the commissioners shall hear the parties, either at the time of the view, or at any regular or special meeting, or any adjournment thereof, as they shall determine ; and as soon as may be after [429]*429the hearing, they shall proceed to adjudicate,” &c. The inquiry then arises as to the effect of such adjudication made at the time of the view, or at some special meeting other than the regular term. Is it to be treated as a final adjudication, and a termination of all action by the commissioners, so that nothing more remains to be done, and that, to all intents and purposes, such adjudication has the like effect as an adjudication at a term regularly holden and attended by a clerk to record all orders ; or is the matter acted upon to certain purposes only, and subject to the control and revision of the commissioners at any time before the same is filed for record at the regular term ? Looking at the statute, it is quite apparent that, to some extent, it favors the position, that an adjudication at the time of a view is a judgment, a determination which is made the basis of future action and further proceedings, and of proceedings which are to be commenced before the next regular term. Thus, in § 6, it is provided, that upon an adjudication, made at the view, of the common convenience and necessity of laying out, or of altering or discontinuing a highway, if no person interested shall object, the tommissioners may forthwith proceed to lay out, alter, or liscontinue such highway. These latter acts all imply a final .etermination, already had, of the question of expediency, or vommon convenience and necessity. On the other hand, these pecial meetings in vacation, held at other places than the shire town, and unattended by any clerk or other officer required to record orders and judgments, are certainly of an anomalous character, if the full effect is to be given to decrees made at them, which is given to those made at term, announced to the clerk as such, and by him recorded or noted for record.
The difficulty and embarrassment in the case have arisen from the attempt to unite, in the same board, all the duties formerly performed by the court of sessions at term, and the further duties formerly assigned to special committees, appointed by that court, to make the view and report their opinion of the common convenience and necessity of granting the prayer of the petitioner. While this practice continued, [430]*430it was very simple and easy of application. The committee acted in the vacation, but having no final powers, their duty was to report, and the final adjudication was to be made by the court of sessions, at the regular term.
The' result of the change has been, as we understand, a considerable diversity in practice, as to the manner in which these adjudications have been considered by the commissioners themselves. In some counties they have, in form, assumed to be nothing more than reports; and the course has been, formally to accept them at the next regular term, before they were filed for record. In others, while less formality of presenting the adjudication for a formal acceptance has prevailed, yet the papers and accompanying adjudication are officially returned and entered as the doings of the commissioners, and ordered to be recorded. Admitting this latter mode to be well authorized by the statute, and supposing it to be competent for the commissioners to treat an adjudication, made at the view, as a final adjudication and determination, and that nothing more is required to be done, but to file the same at the next term, and order it to be recorded; the question then is, whether this is the only course of proceeding that can be sanctioned by law. Now it seems to us, that what is to be taken as the final determination and adjudication of the commissioners must depend upon their own course of proceeding, disclosed by the record of their doings. Their decrees and adjudications are to be learned from the record, which is the only legal manifestation of them. Whenever, therefore, the commissioners themselves set forth the proceeding on the view as a mere preliminary adjudication, to be subsequently confirmed and accepted at a regular meeting, and proceed, at such regular meeting, to deal with it as such, and dispose of it as an open question; and all this before any record has been made, or papers filed for record with the clerk, of an adjudication at the time of view; we must understand that the com • missioners,' in expressing their opinion at the time of the view, do so de bene esse, and that it is not to be regarded as final, until so ordered at the regular term. It is competent for them [431]*431so to do; and the only question will then be as to the nature of their adjudication, as indicated by the record finally made up.
In examining this record, although, looking exclusively at the proceedings at the time of the view in May 1844, we might well suppose them to be of the nature of a final determination of the question before them, and that nothing remained but to file the same for record, yet the entire record indicates a different state of things. The record states that, '* at the commissioners’ meeting, July 1844, after hearing the parties on this report, it is ordered that the same be not accepted.” Before placing upon the record their doings at the special meeting at Pittsfield in May, they reconsider the same and reject it. The manner in which the commissioners, in fact, treated their adjudication of May, is quite obvious; and under the view we have taken of the provisions of the statute, it was competent for them to postpone their final action, and to revise their adjudication at any time before the close of the next regular term, if they had not already filed it with the clerk of the court for record, as their final adjudication upon the subject matter. In this way, we may sustain the proceedings in this case, without calling in question the validity of a different course of proceeding already alluded to, viz. making the adjudication at the view, or at some special meeting, and taking no further order thereon afterwards, at the regular term, except to order the same to be recorded.
The provisions of St. 1839, c. 76, are indicative of the course to be pursued, at least in one class of cases of view and adjudication at the time of the view, and in which further action at the next regular meeting is essential to the completing of the adjudication. The case is that of a discontinuance of a highway, upon the view. The statute provides that the commissioners may, at the same time, adjudge that the said way be discontinued and assess the damages, “ and. when a return of said proceedings and adjudication is made, at the next regular meeting of the commissioners, and accepted, it shall be held to be a discont"nuance of such highway.” [432]*432In this class of cases of adjudication at the view, we have, therefore, an express legislative provision, that an adjudication, made at the time of the view, is only final and effectual upon being accepted at the next regular term. The case before us was not of the kind provided for in this statute ; but the reason for such mode of proceeding applies to both classes of cases.
2. The next objection taken is to the authority of the commissioners to allow the amendment made to the original petition, which, it is contended, essentially changed the ground of the application to the commissioners. The original petition alleged that the town of New Marlborough refused to accept a town way laid out by the selectmen, and the amended petition alleged that the selectmen refused to lay out a way duly applied for by the petitioners. This amendment introduces a new cause of complaint, but not new parties. Although the allegation is, that the selectmen refused to lay out the way, still the town is the only party to be proceeded against, in either case. The town is chargeable for the delinquency of the selectmen in this matter, and liable for costs, as much in one case as the other. It was competent for the commissioners to allow such an amendment, and this objection is not sustained.
Nor is the objection, that the amended petition was not personally signed by the petitioners, one that can avail. It was signed by their attorney, acting on their behalf and representing their interests, and was in amendment of the original petition signed by them.
3. To the objection that no new recognizance was taken, various answers may be given. If the amendment was well granted and properly engrafted upon the original petition, the original recognizance would still attach to the proceedings, after the amendment. . But the omission to take a recognizance would not furnish any sufficient reason for granting a certiorari, and especially where no benefits have been lost by the omission. Here the result of the adjudication is such that the recognizance would have been discharged if it had been given.
[433]*4334. We perceive no substantial defect in the notice to appear in August 1844, as it distinctly recited the matter upon which the commissioners were to act. Further; it was effectual as notice, inasmuch as the town of New Marlborough acted upon it, and appeared by their attorney; which would of itself be a sufficient answer to an application for a certiorari for this cause.
5. It is said that there was no refusal by the selectmen to lay out the way, and therefore there was no case for the action of the commissioners. But we think that the facts show sufficient ground for the commissioners to take jurisdiction under the statute. The proceedings of the selectmen are so essentially defective, and so irregular on the face of them, as to require them to be treated as a neglect and refusal to lay out the way. Without alluding to other defects, it is sufficient to say that the neglecting to report the laying out of the same, in writing, to the town, was a neglect and refusal to lay out the way prayed for.
6. The only remaining objection is that of the amount of costs assessed upon the town of New Marlborough. The entire costs were assessed upon that town. As an original question, it would seem that this was not quite reasonable; and as to the costs incurred before the petition was amended, that they ought to have been paid by the petitioners, before leave should have been given to amend their petition. But we may not be possessed of all the facts bearing upon that question. It was competent for the county commissioners to decide as to the costs, and they having exercised their judgment in the matter, we do not see cause to grant a certiorari for that reason.
Petition dismissed.