This case comes before us in the form of a motion for a new trial. The motion shows that upon the trial before the committee, upon the question as to the “common convenience and necessity” of the highway prayed for, the petitioner, pursuant to the statute,* for the purpose of proving the probable expense of the proposed highway, offered in evidence a bond purporting to bind the obligors to construct the highway for a given sum. The respondents objected to the bond ns irrelevant and inadmissible. The petitioner’s *239counsel thereupon stated that if upon examination of the statute, (no copy of which was then at hand,) it should be found that the bond did not conform thereto, he should claim the right to amend it. The counsel for the respondents did not consent to this, but reiterated their objection to the reception of the bond.

The committee received the bond in evidence, but consented that the petitioner should have the privilege of amending it if found to be not in conformity with the statute, or of filing a bond which should conform to the provisions of the statute. The committee subsequently satisfied themselves by an examination of the statute that the bond was not admissible, and did not consider it as evidence in the case. It remained in the hands of the committee and no announcement was ever made to the respondents’ counsel, nor did they know, that the bond was rejected by the committee.

After the trial was closed, at a subsequent day, the petitioners sent to the committee by mail a bond which did conform to the statute and which the committee received and considered as evidence.

The last named bond was sent to the committee, received by them, and used as evidence in the case, without the knowledge or consent of the respondents’ counsel. On this ground the respondents claim a new trial.

The question of course is, whether the conduct of the committee in this respect was “irregular and improper.” If it gave to the petitioner an unfair advantage to the prejudice of the respondents, it was irregular and improper. Otherwise, if the petitioner only received what he was entitled to and the respondents had a fair and reasonable opportunity to meet it and refute or explain it.

There is no claim that the bond last offered and received was not in all respects such as the statute required. That the petitioner had a right to the benefit of such a bond as evidence is indisputable. Such right is in terms secured to him by statute. He therefore received only what he was justly entitled to.

Were the respondents thereby legally prejudiced? We *240tbink not. The petitioner in the presence of the respondents and their counsel proposed that he should have the privilege, if necessary, of sending to the committee such a bond. This was an open and fair proposition. The motion states that the respondents’ counsel did not consent to it. But it does not appear that they made any objection. It may be conceded for the purposes of this case that they had a right to object, and to insist that such bond, if received at all, should be received before the evidence was closed, and that they should be permitted to examine it, and take exception to it, or meet it in any way they might think proper.

If they had made objection and claimed this right expressly, it is not to be presumed that the committee would have denied it. But no such objection being made we think the committee might fairly consider it as a matter within their discretion. We also think that the respondents have no reason to complain of the exercise of that discretion. A specific objection might, as we have already suggested, have resulted in a different course. Moreover, it does not now appear that the respondents could have made any answer to the bond, or in any other way could have counteracted its effect.

The respondents had fair notice of the proposition to offer this piece of evidence at the time and in the manner it was offered; the committee in their presence assented to the proposition; the respondents then and thereafter acquiesced in it, and now it does not appear that théy were thereby prejudiced.

A new trial therefore should be denied.