The proceedings for the assessment of the petitioner’s damages by a jury were governed by the provisions of the highway act. Gen. Sts. c. 63, § 22. By those provisions, it is the duty of the officer presiding at the trial before the sheriff’s jury to decide all questions of law arising at that trial *457which would be proper for the decision of a judge; to direct the jury upon any question of law, if requested by either party; and, if requested, to certify to the Superior Court with the verdict the substance of any decision or direction by him given $ and that court may set aside the verdict “ for good cause.” Gen. Sts. c. 43, §§ 32, 33, 40. When questions of law reserved at a trial fail to be reported to the court having jurisdiction to revise them, by reason of the death or resignation of the judge or officer presiding at the trial, and without any fault of the party, it is good cause for a new trial; and an order made by the court in the exercise of its discretion, granting a new trial under such circumstances, cannot be reversed on bill of exceptions. Walker v. Boston & Maine Railroad, 3 Cush. 1, 16. Borrowscale v. Bosworth, 98 Mass. 34. Brady v. American Print Works, 119 Mass. 98. New York Ins. Co. v. Wilson, 8 Pet. 291.
In the case before us, each party requested the presiding officer to reserve and report to the court his decisions upon certain questions of law arising at the trial; and, on the day on which the verdict was returned to the court, the counsel of both parties signed and filed an agreement that the case might “ stand continued nisi for a report of the presiding officer.” Each of the parties made a draft of the report, and they were heard thereon by the presiding officer; but he died eighteen months after the return of the verdict, without having filed his report. Upon these facts, it was clearly within the discretion of the judge presiding in the Superior Court to set aside the verdict and grant a new trial. But we cannot concur in his opinion that more than two years after the term to which the case was originally continued nisi for a report, and without considering the evidence offered of the relative loches of the parties, he was bound, as a matter of law, to order a new trial. As he appears to have so ruled as matter of law, without exercising any discretion, the exceptions to his order must be sustained, and the motion for a new trial stand for
Further hearing in the Superior Court.