Smith v. Gilman

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 [502] 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.