The opinion of the court was delivered by

By the system of road • commissioners, that board were vested with authority to decree upon a town a sum with costs for the making or repairing a highway or bridge, on the application of petitioners, and issue extent therefor; which it appears was done against Sunderland in 1831. In November, 1831, that system of road commissioners was repealed, but in that repealing act it was provided that the act should “ not be construed to affect any proceeding, or liabilities already commenced or incurred” under this system. This repealing act took effect in December, 1831. After that time no board of road commissioners existed, to which committees of appeal could make report, nor clerk of the board, to issue execution or extent on the unexecuted judgments or decrees of the board, thus preserved in force by the repealing act. In November, 1832, the legislature by act provided that the clerks of the county courts should be clerks of the board of road commissioners, to receive reports, complete records and issue extents or executions, as he might have done had he continued in office. Under this act the clerk could have issued execution in this case, but more than a year and a day had expired, and many such cases existed. In October, 1833, there was further provision that -in all cases of an order or decree by the road commissioners *218f0r damages or costs, or for a sum of money to repair or make a road which remained unsatisfied, the person or persons in whose favor said judgment or decree existed, might apply by petition to the county court for an execution for said amount with costs, which said court were authorized to issue. By these acts, this business is transferred to the county court as a part of their jurisdiction of a court of sessions. When a court or other body is invested with á power, the mode of exercising it, unless specially provided for, follows as a necessary incident. The orders and decrees of road commissioners for making or repairing a road or bridge, .or decreeing a sum of money for such a purpose, was for the public service, and had not the statute of 1833 regulated the mode of proceeding, the course would have been by information from the government attorney for an extent, or by presentation by the grand jury; for wherever there is a public duty neglected, there must be a corresponding public remedy. But the statute of 1833 has so far regulated the course of proceedings in this case, as to say the execution shall issue by the county court on-the petition of “the person or persons in whose favor the judgment or decree is made.” This is sufficiently satisfied by the petition being made by a majority of those persons, as the public interests must not fail from the negligence or obstinacy of an individual. That other persons unnecessarily affixed their names to this petition, was entire surplusage: — • useless there, no injury was done by their erasure.

Much is said about this execution requiring the money to be paid to these applicants. This is an entire misapprehension of the system and its objects. Had the clerk of the road commissioners issued execution, it would have required the payment of the money to him,<to have been expended on the road, under the direction of the committee of the commissioners. The clerk of the county court is now the substitute, and should issue execution for the money to be paid in to him; and the county court, as the court of sessions, to whom is transferred the power of carrying into effect the decrees of the road commissioners, will, in pursuance of the power of the commissioners, and in pursuance of the power vested in them by statute, in other cases, of laying out money assessed on towns, appoint an agent or committee to layout this money on this road.

The judgment is affirmed, but execution will issue from this court for the costs of this court only. The county clerk will issue execution on the judgment below.