Smith v. Gilman
Superior Court of New Hampshire
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.
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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.
1Opinion of the CourtRichardson, 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 *502joined between him and the plaint iff to try ; and as to him this writ must be quashed. 6…
2Cases cited1 opinion
- Emerson v. PatteeMassachusetts Supreme Judicial Court · 1805
3Cited by4 opinions
- Arthur v. JamesSupreme Court of Pennsylvania · 1857
- Williams v. ThorpNew York Supreme Court · 1828
- Solomons v. ChesleySupreme Court of New Hampshire · 1876
- Solomons v. ChesleySupreme Court of New Hampshire · 1876