STEPHEN SMITH versus SAMUEL KIMBALL

STEPHEN SMITH versus SAMUEL KIMBALL.

The statement of the demand upon which a rule of reference is made before & justice of the peace, pursuant to the statute of June 21, 1797, must be in writing-, under the hand of the party making the demand, and a writ of review sued out against such party is nota sufficient statement, within the meaning of the statute.

REPORT of referees, on a rule made before a justice of the peace.. Smith brought an action of the case against Kimball, in this county, and at the September term of this court, 1816, recovered judgment. On the 3d of December, 1816, Kimball sued out a writ of review, which was served upon Smith on the 4th of January, 1S17. On the same 4th of January the parties entered into a rale of reference before a justice of the peace, in pursuance of the statute of June 21, 1797, and agreed to submit “ the suit made by said Smith “ against said Kimball, which is hereunto annexed, being “ now upon review by said Kimball.” The demand annexed to the agreement to refer was the writ of review. The referees made their report in favor of Kimball, at the last term of this court, when J. P. Hale and Moody, for Smith, objected that no judgment could be rendered upon the report, because the rule had not been made in pursuance of the statute; that the statute required the person making the demand to make out a particular statement thereof, under his hand in writing, and that a writ of review brought by Kim-ball against Smith could not be considered as a statement under Smith’s hand, within, the meaning of the statute.

L. B. Walker and J. Smith, for Kimball.