(after stating the case.) The statute (The Code, § 2056) allowing cartways to be laid off in certain cases, among other things provides that “the petitioner or the adverse party may appeal from the order of the Supervisors to the Board of Commissioners of the county, and from the order of the Board of Commissioners to the Superior Court at term, where the issues of fact shall be tried by a jury and from the judgment of the Superior Court to the Supreme Court as in other cases of appeal.” So that by express provision of the statute an appeal lay from the order of the Supervisors allowing the cartway and directing that it be laid off as prescribed by law. That order was final in its nature, and as the defendant had the right to appeal from it, it would be idle to execute it before the appeal should be taken. It might be reversed by the County Commissioners or by the Superior Court, on appeal from their order. The County Commissioners, on appeal to them, should have heard the whole matter of the application upon its merits, and not simply upon a statement of the facts and the points of contention by the Supervisors, and so also the Superior Court should have heard it upon its merits as to the facts and the law applicable. That the statute so intends is apparent, from the provision that in the Superior Court “the *550 issues of fact shall be tried, by a jury,” and the further provision that the Court may direct either party to pay the costs that may accumulate after the order of the Supervisors. We cannot conceive of a substantial reason why the order allowing the cartway should be executed to any extent until it is settled and determined.

The case of McDowell v. The W. N. C. Insane Asylum, decided at the present term, is much in point here, and we need not add to what is said in that case.

The Court should not have dismissed the appeal, but should have heard the whole matter brought before it by appeal upon the merits.

The judgment must therefore be reversed, and the matter disposed of according to law.

Error.