Smith v. Gilman

Decided September 15, 1826

Superior Court of New Hampshire · decided 1826-09-15

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.

Cited by 2 later decisions — most recently August 1876

2 state decisions

Key passage — most relied on by later courts

“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,”

quoted by 1 later decision, including Solomons v. Chesley

Good law ✅— No negative treatment on recordhow we know

Decided 1826-09-15

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Richardson, C. J.

¶1In 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 Mass. Rep, 498.

¶2But 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.