
    Nathan Rice, Executor, versus The Barre Turnpike Corporation.
    
      Oct. 9th.
    
    Where the return of a committee for laying out a turnpike road and estimating the damages occasioned thereby to individuals, was accepted by the Court of Sessions, and tlie corporation ordered to pay the damages so estimated, and thereupon an individual petitioned that court for a jury to assess his damages, and afterwards the petition was adjudged to be abated by his death, it was held, that his executor might maintain an action of debt against the corporation for the damages estimated by the committee, declaring on the order of the Court of Sessions as a judgment.
    Debt upon a judgment of the Court of Sessions.
    The parties agreed upon the following statement of facts.
    The turnpike road was laid out by a committee duly appointed, and a return of the location, with an estimation of damages, was made at the Court of Sessions in March 1823, and accepted, and the corporation was ordered to pay the damages so assessed. The committee assessed damages to the plaintiff’s testator in the sum of 203 dollars, for injury done to his land by the location, which sum was tendered by the corporation to the testator before the working of the road, but was not received by him. In September 1823, the testator petitioned the Court of Sessions for a jury to assess his damages, and such proceedings were had thereon, that a verdict was returned to that court in March 1824. At a subsequent term in March 1825, those proceedings were vacated and the verdict set aside for irregularity, leaving the petition pending ; after which the respondents appeared no further in the suit. Before the next term the testator died ; and the court adjudged that the petition was thereby abated. In November 1825, the plaintiff demanded of the treasurer of the corporation, the damages assessed by the committee, and afterwards brought this action upon the order above mentioned, requiring the corporation to pay the damages so assesed.
    
      Newton,
    
    to show that debt would lie on such order, referred to Bigelow v. Cambridge &c. Turnp. Corp. 7 Mass. R. 202 ; Jeffry v. Blue Hill Turnp. Corp. 10 Mass. R. 368 ; and he said that the petition for a jury was not in the nature of an appeal, but of a petition for a new trial, and that by the abatement of it, the parties stood in the same situation as if it had never been preferred.
    
      Lee and Goodwin, for the defendants,
    contended, that the petition was in the nature of an appeal, and so no action could be sustained upon the order of the Court of Sessions. Campbell v. Howard, 5 Mass. R. 376 ; How v. How, ibid. 375; Bailey v. Baxter, 1 Mass. R. 156 ; Com. Dig. Debt, A2. The form of action is misconceived; for the order upon which it is brought is not a judgment, for want of the words idea consideratum est.
    
   But per Curiam, there can be no question but that the action is well brought.

Defendants defaulted. 
      
       See 1 Chitty’s Pl. (6th Amer. ed.) 123; Gedney v. Tewksbury, 3 Mass R. 309, 310.
     