Whether a petition for mandamus against the selectmen is the appropriate form of action to secure the building of a highway laid out by them (State v. Landaff, 22 N.H. 588; Currier v. Davis, 68 N.H. 596); whether, if it is, it is not prematurely brought pending an appeal from the laying out; whether the plaintiffs are proper parties; and whether the highway in question is one the selectmen had power to lay out (Griffin's Petition,27 N.H. 343), are questions which it is unnecessary to decide, since it appears that the highway in question has been discontinued. The vote of the town of August 33, "to rescind all action taken by the selectmen relating" to the proposed new road or highway, sufficiently states the purpose to discontinue the same. The "action taken by the selectmen" was the laying out of the highway in question, and the evident purpose of the vote was to nullify the action of the selectmen so far as the town had power to do so. As the power of the town to discontinue the highway is not denied (P. S., c. 72, s. 1), and as the exercise of that power was the apparent purpose of the voters, shown by competent evidence, the highway, if legally laid out, was legally discontinued.

Exception overruled.

CHASE, J., was absent: the others concurred. *Page 69