By the Court.

1. The Gen. Sts. c. 43, § 42, provide that when a verdict is set aside, “ the commissioners, on application therefor, shall order a new jury.” It is obviously proper, if not necessary, that the party desiring further proceedings should file a petition, reciting the prior proceedings, including the setting aside of the verdict, in order that the basis of the further proceedings may appear of record. The petition was proper as an application for a new jury, and the warrant issued thereon was in conformity with the statute.

2. Whether any part of the land for which damages were claimed had been so used by the public, with the acquiescence or by the dedication of the petitioners, as to make it already a part of the highway, was a question of fact for the jury upon all the evidence in the case. The instructions prayed for, that it had become part of the highway, so that no damages in respect thereto were recoverable, were rightly refused.

3. The objection that a considerable portion of the damages allowed to be proved were recoverable only in the manner provided by the Gen. Sts. e. 44, §§ 19, 20,* is not sustained by the report, which states that “ it appeared that the street was widened below as well as in front of the premises of the petitioners, and that the work on the crossing aforesaid was done at the same time as, and as a part of the actual work of widening *433said street, both in front of and below the premises of the petitioners.”

4. But evidence of “ the amounts paid by the respondents to the Fall River Manufactory and the Annawan Manufacturing Company respectively, for land taken from them by the widening of ” the same street was of a mere settlement of damages, and not an ordinary sale and purchase of an estate, and was incompetent, and improperly admitted. Presbrey v. Old Colony & Newport Railway Co. 103 Mass. 1, 9. Verdict set aside.

“ Section 19. When an owner of land adjoining a highway or town way sustains damage in his property by reason of any raising, lowering, or other act, done for the purpose of repairing such way, he shall have compensation therefor, to he determined by the selectmen or mayor and aldermen; with whom he shall file his petition therefor after the commencement, and within one year from the completion of the work; and who shall finally adjudicate upon the question of damages within thirty days after the filing of the petition therefor, *433unless the parties agree in writing to extend the time. The benefit, if any, which the complainant may receive by reason of such alteration or repair, shall be allowed by way of set-off.

“ Section 20. If the petitioner is aggrieved, either by the estimate of his damages or by a refusal or neglect to estimate the same, he may, within one year from the expiration of said thirty days, apply for a jury, and have hit damages ascertained in the manner provided where land is taken in laying out highways. Or he may, by agreement with the adverse party and upon application made within the same time, have them ascertained by a committee to be appointed, in the city of Boston by the Superior Court, and elsewhere bv the county commissioners in their respective jurisdictions.”