#### HANNAH S. PRIDGEN et al, v. GEORGE W. BANNERMAN et al.

Where a fact, proposed to he proved by a party, is admitted by the opposite side, it is not error in the Court to refuse to let it be proved by witnesses.

an there is no error in refusing to give particular weight to a rebutting fact, and where the Judge thought the testimony preponderating against said fact, it was not error to say of such fact, that it was immaterial.

Whether there was a necessity for a public road, between given termini, is a ¿natter which, cannot be re-examined in this Court.

*54Petition for a public road, heard before Fbenoh, J., at the last Fall Term of Bladen Superior Court.

The prayer of the petition was for a public road, running from Mount Zion Church, in Bladen county, to Lake creek, in the same county, as near as practicable to the line of an old road, now closed; said road to be seven miles long. It was-in evidence, that a road had lately been established by the County Court of Bladen; between the termini of the proposed road, running most of the way about half a mile from the line of the old road; and the counsel for the petitioners offered to prove by the records of the county court, that such road was not laid out according to law.

The Court refused to hear such testimony, saying it was immaterial; that the pleadings did not raise that point. After the testimony was all in, the petitioners offered, again to prove that the road, now used as a public road between the termini of the road prayed for, was not laid out according to. law. The defendant admitted the fact alleged, hut the Court said it was immaterial, and if it were proven, it would not affect his decision, as he did not think the road prayed for, necessary, Judgment against petitioners, and appeal by them.

Bal&er, for the plaintiffs.

M. B. Smith, for the defendants^

Battle, J.

We are unable to. discover any error in th& record of which the plaintiffs can complain. The fact, which they offered to prove by testimony, was admitted by the defendants to be true, and the remark made by the Judge, that it was immaterial, meant, in the connection in which he used it, that it was immaterial to the- decision of the cause in the view whieh he took of it. A road was in use by the public,, and whether it had been originally laid out according to law or not, his Honor thought that another public road’running so near the same line, could not be necessary.. The plaintiffs,, then, had the benefit of his Honor’s judgment upon the weight to be allowed to the fact, that the road, already in public use. *55had not been laid out according to law. Admitting the fact, he decided that he could not change his opinion, because he thought the road, proposed by the plaintiffs, was unnecessary any how. It is conceded that the question of the necessity for the new road was one, the decision of which, in the Superior Court, is not the subject of re-examination in this Court.

Per Curiam,

Judgment affirmed.