Either party, dissatisfied with the award of the county commissioners, assessing damages for the taking oi land for a railroad, may apply for a jury to assess the damages. Parker v. Boston & Maine Railroad, 3 Cush. 107. Miller v. County Commissioners, 119 Mass. 485. Sts. 1870, c. 75; 1873, c. 261; 1874, c. 372, § 68. But he is not entitled to a jury, unless he makes his application therefor within a year from the award of the commissioners, and enters into a recognizance for the payment of costs. St. 1874, c. 372, § 67. Gen. Sts. c. 43, § 24. New Haven Northampton Co. v. Northampton, 102 Mass. 116, 123, 124.
A petition, for a jury is not strictly an appeal, and does not vacate the award of the commissioners. The petitioner had the right, at any stage of the proceedings, upon such terms as the court should order, to waive a trial by jury and accept the award of the commissioners. Gen. Sts. o. 43, § 41. The respondent, not having himself filed a petition for a jury and entered into a recognizance, had no right to insist upon a trial by jury. The St. of 1874, e. 372, § 80, does not extend his right in this respect, but is limited to cases in which proceedings upon his own application have been quashed or defeated for informality.
The case is not like one in which the defendant has filed a declaration in set-off upon a distinct cause of action, and which cannot therefore be discontinued by the plaintiff without his consent. Gen. Sts. c. 130, § 21. It is more analogous to an ordinary action at law, in which the plaintiff has the right to become nonsuit at any time before trial. Burbank v. Woodward, 124 Mass. 357.
Upon discontinuance of the petition for a jury, the landowner has ample remedies to enforce the award of the commissioners, by warrant of distress, or by bill in equity to restrain the corporation from entering upon or using the land. St. 1874, c. 372, §§ 67, 69, 72. New Haven & Northampton Co. v. Northampton, 102 Mass. 126. Elwell v Eastern Railroad, 124 Mass. 160.
Exceptions sustained.