The action of the mayor and aldermen of the 21st of January 1851, accepting the report of a committee of their number, in which they refuse to recommend that “damage be appraised and allowed the said trustees,” was equivalent to a refusal to assess any damages on the-petition. It was a judgment against the petitioners’ claim for damages, which would, have authorized an application for a jury according ta *90the provisions of law. Nor was this refusal waived or modified by the subsequent action of the board in October 1853. The previous vote was not reconsidered, the grade of the road was not changed, and no action was taken which in any degree altered the previous refusal of the board to give the petitioners any damages. Monagle v. County Commissioners, 8 Cush. 362.. Smith v. Mayor & Aldermen of Boston, 1 Gray, 72.

Petition dismissed.