The petition for a jury, filed with the county commissioners at their regular meeting in June 1845, as an original petition, was not filed in due season; the Rev. Sts. c. 39, § 57, limiting the application to the meeting at which the estimate of damages by the commissioners shall be completed and returned, or at the next regular meeting thereafter.
It is contended that the application may be made within the period of six months, as in case of an application for a jury to assess damages in the location of a highway. But though the general course of proceedings is similar, in relation to a jury in the two cases, yet, upon this point, the cases differ, and a different statute provision exists. The only question, therefore, in the present case, arises upon the application for further proceedings upon the original petition filed at the proper term, and upon which a jury was ordered, but never called out by the petitioner. If such order had been a legal one, and a warrant had been duly issued thereon, and *482the petitioner, without any sufficient cause, had neglected tc call out the jury, he would thereby be taken to have waived his right to a jury; as was held in Taylor v. County Commissioners of Plymouth, (ante, 449.)
Upon examining the records of the doings of the county commissioners, upon the original petition, it is quite apparent that no legal order was ever made, ordering a jury thereon. Such order could only be made after due notice to the corporation, or, what is equivalent, an appearance by them. Central Turnpike, 7 Pick. 13. Hinckley, 15 Pick. 447. The order being thus wholly illegal, no duty devolved upon the petitioner to call out the jury, in pursuance of such order; and he might properly treat it as a nullity. The proper order, upon the original petition, has not been made, viz. an-order of notice upon the corporation to show cause why a jury should not be ordered upon the petition. That order it is yet competent for the county commissioners to make. The case is still pending, and the subject of any proper order. If it has not been duly brought forward upon the docket of that crilunal, it may be so now. The petition is undisposed of, and the further proceedings necessary to assess damages by a jury may yet be had thereon.
We think the proper order here will be, that an alternative mandamus issue to the county commissioners of Norfolk, requiring them to issue an order of notice to the Stoughton Branch Rail Road Company to appear before them and show cause why a jury should not be ordered upon the original petition of said Robert Porter, or that said county commissioners show cause for not so doing.