(1) It does not appear from the record that the paper, Exhibit A, was introduced in evidence or read before the jury, or that it was considered by the court, except as a notice of appeal and as a plea that the proceeding had not been commenced within six months, for which purposes it was competent.
(2) The road law (ch. 201, Pub. Laws 1907) under which this proceeding has been conducted provides that either party *527aggrieved in. tbe assessment of damages “shall have tbe right of appeal to tbe Superior Court, after giving good and sufficient security for costs,” and tbe plaintiff contends this is mandatory, and that tbe giving of tbe bond being a condition precedent to tbe right to appeal, tbe court bad no power to permit tbe bond to be filed, and that tbe appeal of tbe defendant to tbe Superior Court ought to have been dismissed.
Tbe language of tbe statute is not more imperative or _em-pbatic than that of section 450 of tbe Revisal, which says: “Before issuing tbe summons tbe clerk shall require of tbe plaintiff either to give an undertaking, etc.,” and it has been uniformly held under tbe latter statute that tbe court may permit tbe undertaking to be filed after tbe writ is returned (see annotations in Pell’s Revisal, sec. 450), and tbe same construction should be given to tbe statute under consideration.
(3) Tbe road law also provides that tbe party aggrieved by tbe change or location of a road must file bis petition asking' for tbe assessment of damages within six months after such change, location, or relocation of tbe road, and as tbe jury has found that tbe plaintiff’s petition was not filed within tbe time prescribed, tbe court properly refused to affirm tbe report and award of tbe assessors.
(4) We do not see tbe pertinency of tbe instruction which bis Honor refused to give, as it does not appear in tbe record that tbe defendant failed to accept “tbe job of Foil or that it undertook to take advantage of its failure to do so.”
We find no error in tbe trial.
No error.