The opinion
Gray, C. J.
The only case which tends to support the respondent’s position is one decided in 1798, in which a writ of mandamus to the Court of Sessions to order a jury to assess damages sustained by the laying out of a highway over land of the petitioners, is said to have been denied by this court, “ principally because the petitioners did not state that they demanded damages before the committee that laid out the way, who gave them no damages at all; for, said the court, the application for a jury is very clearly in the nature of an appeal; and to be entitled to apply for a jury, the party must demand damages to be assessed for him by the locating committee.” Brown v. Haverhill, 3 Dane Ab. 263.
At the time of that, decision, the Court of Sessions consisted of the justices of the peace of the county; St. 1782, c. 14, § 1; and the right of appeal from the judgment of a justice of the peace in civil actions was restricted to cases “ where both parties have appeared and pleaded.” St. 1783, c. 42, § 6. In such a *38 state of the law, it was not unreasonable to hold that the- provision of the St. of 1786, c. 67, § 4, allowing parties aggrieved by the doings of the committee of the Court of Sessions in laying out a highway, or in estimating damages, to apply for a jury, must be likewise restricted to cases in which there had been an actual contest before the tribunal of first instance.
But in the later statutes, all provisions restricting the right of appeal to cases in which there has been a joinder of issue in the court below have been stricken out. Rev. Sts. e. 82, § 6; c. 85, § 13; c. 87, §§ 15, 35; and notes of Commissioners to c. 82, § 6, and c. 85, § 12. Holman v. Sigourney, 11 Met. 436 . Gen. Sts. o. 116, § 32 ; o. 120, § 25. There is therefore no longer any reason for applying such a restriction, and none has been applied in practice, to petitions for a jury to assess damages for the laying out or altering of a highway, whether presented to the county commissioners under the Rev. Sts. c. 24, § 13, the Gen. Sts. a. 43, § 19, and the St. of 1870, c. 75, or to the Superior Court, under the Sts. of 1873, e. 261, and 1874, c. 341.
The result is, that in the first case the judgment accepting the verdict must be affirmed, and in the second case the
Exceptions overruled.