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JONATHAN SMITH vs. NICHOLAS GILMAN AND CHARLES CLARK
September 1, 1826 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| September 1, 1826 | JONATHAN SMITH vs. NICHOLAS GILMAN AND CHARLES CLARK Current page | Opinion | Supreme Court | Reporter |
JONATHAN SMITH vs. NICHOLAS GILMAN AND CHARLES CLARK.
In an action of trespass, brought by 5. against G. and C. G. was defaulted, and the cause being tried between 5. and C a verdict was-returned ior the plaintiff and judgment rendered against both defendants. ⅜§. afterwards sued out a writ of review against both defendants — held, that the writ, of review might be maintained against C.» but not against G, who had been defaulted.
In this case, Smith brought an action of trespass against the defendants, which was entered here at February term, 1823, when Gilman was defaulted. Clark pleaded the general issue, which was tried, at September term, 1824, and a verdict returned for Smith, with damages assessed at $130: whereupon judgment was rendered fsr the plaintiff, for that sum, against Gilman and Clark. Smith then sued out this writ of review against Gilman and Clark, which their counsel moved the court to quash, — on the ground, that a writ of review could not, under such circumstances, he sustained.
M. Cutts, for the plaintiff.
Gilman and Sullivan, for the defendants.
Richardson, C. J.
In the case of Andrew Lovejoy vs. John A. Harper, Strafford, November term, 1815, it was decided, that a writ of review could not be sustained, except in cases, where there was an issue in fact, to be tried by a jury, joined between the parties. To this decision, the court has constantly adhered since that time; and the question must now be considered as settled and at rest. It is clear then, that with respect to Gilman, who was defaulted, this, writ of review' cannot be sustained. There ivas no issue joined between him and the plaint iff to try; and as to him this writ must be quashed. 6 Mass. Rep, 498.
But between the plaintiff and Clark an issue was joined, and with respect to that a review may he sustained. 1 Mass. Rep. 482, Emerson and others vs. Pattee. We are therefore of opinion, that so far as regards Clark the motion must be overruled, and as to Gilman, the writ must be quashed.