Patridge v. Ballard
2 Me. 50
| Me. | 1822
Mellen C. J.

delivered the opinion of the Court as follows.

Several objections have been made to the instructions given to the jury by the Judge who presided at the trial.

As to the competency of the Court of Sessions to annex a . condition to the grant of the prayer of the petition for the location of the highway in question; — by the Slat. 1786, ch. 67, *54sec. 2. the Court of General Sessions of the peace may, in certain cases lay out private ways at the costs of the per sms applying. A similar power is given to the Court of Sessions in this State, by Slat. 1821, ch. 11'8. sec. 10. By this provision it must be intended that the Courts may subject the persons applying for the way to the payment of such costs, whether they consent thereto or not. In the case of county roads or highways no such provisiqn exists by law. In the case before us it was not contended by the plaintiff nor intimated by the Judge that the Court had power to compel the petitioners to defray the expense of laying put the road without their consent. The decision of the Court as to the location of the road, expressed in the judgment and warrant, could not of itself create any liability on the part of the petitioners; — it is the assent of the petitioners, in every such pase, which must create their liability. Hence, in the case at bar, the question of assent was left to the jury for their consideration and decision, upon the evidence relied on by both parties. On this point we perceive nothing incorrect iu the Judge’s instructions to the jury.

The next objection to the opinion of the Judge relates to the alteration made in the course of the road, and the submission of the question of its materiality to the determination of the jury, as well as the petitioners’ assent to such alteration. We think both these points were properly left to the jury. This is not like the common case of an alteration of a written contract, where the question of materiality is always a question of law,— being a question of construction; — but in the case before us the materiality or immateriality must depend on facts which are not open to the inspection of the Court, but must be proved by witnesses in the usual form, whose character and testimony must be the subject of their peculiar consideration.

Neither was the Judge incorrect in stating to the jury that certain facts, by him enumerated, constituted sufficient evidence of the assent of the.petitioners to the conditions above mentioned respecting the expense of laying out the road. By this instruction of the Judge he must have intended that the jury would decide whether the facts to which he referred were satisfactorily proved; and that, if they believed those facts, they proved the assent to those conditions. We perceive nothing improper!*55in this instruction. When certain facts are proved, with a view to take a case out of the statute of limitations, — to prove a new promise by a person after his arrival at full age, — to shew probable cause for a prosecution, — or to charge or discharge an indorser in a suit against him; in all such cases, and many others which might be named* it is a question of law whéther the facts so proved are sufficient to establish the point intended.

Another objection is, that it is agaihst public policy to give legal effect to the promise of the defendants, if such promise has been proved* No authorities have been read to support this objection; and inasmuch as the petitioners must have felt an interest in procuring the establishment of the road, we do not perceive why public policy should discountenance the performance of the promise they made to gain the object they had in view. See the case Gowen v. Nowell, 1 Greenl. 292.

The last objection which has been noticed by the counsel in the argument is, that the promise of the defendants is without any legal consideration. In reply to this objection we need not add any thing to the answer last given.

Judgment on the verdicts