Randall v. Conway , 63 N.H. 513 ( 1885 )

In many cases, requirements that proceedings be recorded or certificates filed are regarded as merely directory, and not as steps necessarily precedent to the validity of the act (Hayes v. Hanson, 12 N.H. 290, Smith v. Bradley, 20 N.H. 117, Converse v. Porter, 45 N.H. 385, 389, Pond v. Negus, 3 Mass. 230, 231, Williams v. School Dist., 21 Pick. 75, 82, Jackson v. Young, 5 Cow. 269), and the provision of Gen. St., c. 61, s. 14 (G.L., c. 67, s. 18), requiring selectmen to make a return of every highway by them laid out within thirty days, and cause the same to be recorded by the town-clerk, we think is to be so regarded. Doubtless as against a land-owner, or other person entitled to appeal from its laying out, a highway cannot be considered as duly laid out until the return of the selectmen is deposited with the town-clerk for record, and perhaps not for any purpose (Hayes v. Shackford, 3 N.H. 10, Greeley v. Quimby, 22 N.H. 335,339, Commonwealth v. Merrick, 2 Mass. 529); but in this view the highway here became a legal one long prior to the plaintiff's injury, and the defendants being in no way prejudiced by the failure of the selectmen to make return of its laying out agreeably to the statute, they can take nothing by their objection to its legality.

The exception to the denial of the motion to set aside the verdict as excessive raises no question of law, is not properly here, and will not be considered.

Exceptions overruled.

SMITH, J., did not sit: the others concurred.