¶1delivered the opinion of the court.
¶2Lewis prosecutes this writ of error to a judgment of the county court of Erauklin, altering the public road leading from Leestown-road to Lewis’ mid.
¶3Several errors are assigned; but it will only be necessary to notice, such as involved the propriety of rendering judgment without having first had Lewis, through whose land neiv roa£…“ Part runs» summoned as required by law.
¶4The parties had previously entered into an agreement *159with respect to the manner of altering the road. Bat if the agreement is relied on, the judgment of the court is not conformable thereto; and if any variance therefrom can be warranted, the absent party should have been summoned, in order that an opportunity might have been afforded him of opposing such a variance: and in that event a writ acl quocl damnum ought to have been awarded. This not appearing to have been done, justifies tbe presumption that the coqrt intended to enter judgment conformable to the agreement; but not having done so, the judgment must be reversed with cost, and the cause remanded for further proceedings if required.
¶5 EWing. "