
    Samuel Swett & Al. versus William Sullivan.
    By the final judgment, mentioned in the statute of 1784, c. 10, § 3, within one year from which scire facias must be served upon bail, is intended the first judgment, oa which the plaintiff may sue out an execution; whether such judgment be rendered in the Common Pleas or in this Court; and a judgment on review is not intended.
    This was a scire facias against the defendant, as bail of Abraham Ogden, to obtain execution of a judgment recovered by the plaintiffs against the said Ogden, in this Court, November term, 1807, for the sum of 3693 dollars 83 cents debt or damage, and 136 dollars 90 cents costs.
    The defendant prays oyer of the bail bond, (which is dated May 23, 1803,) and then pleads in bar to the scire facias, that the original writ, upon which Ogden was arrested, was returnable to the Court of Common Pleas on the first Tuesday of July, 1803, when and where it was entered and continued to the then next October term of that court, from whence it was carried by appeal to this Court, holden in November, 1803, and thence, by divers continuances, to November term, 1805, when a verdict was returned against the said Ogden for the sum of 3188 dollars 10 cents damage, upon which final judgment was there rendered on the last day of said term, viz. on the 8th day of January, 1806, as by the record thereof now remaining in said Court appears; that the plaintiffs sued out their execution upon the said judgment on the 11th day of February, 1806, which was, on the 11th day of March following, duly returned in no part satisfied ; that he, the said William, was at all times, within one year after the rendition of said judgment, ready to bring the said Ogden into Court and surrender him, before any judgment could have been rendered on any writ of scire facias, which might have been issued on said judgment, but that the plaintiffs did not, within one year, cause *any [ * 343 J scire facias to be issued against him as bail, &c.; that the defendant was liable, by force of the said bond, for one year after the rendition of said final judgment, and no longer; that the judgment recited in the writ of review was not rendered upon the original writ, upon which Ogden was arrested, but in a certain action or process of review of a plea of the case aforesaid, wherein the writ of review was purchased by said Ogden on the 1st day of February, 1806, returnable to the then next March term of this Court, from whence it was continued to November term, 1807, when the now plaintiffs recovered the judgment mentioned in the writ of scire facias; and that, in the said action or process of review, the defendant was not the bail of Ogden, nor bound for his appearance therein, nor in any manner bound or holden that Ogden should abide said last-mentioned judgment. And this, &c.; where fore, &c.
    The plaintiffs in their replication allege that, at the term of this Court holden here in November, 1807, they recovered final judgment in the suit aforesaid, commenced at the Court of Common Pleas, July term, 1803, and in which the now defendant became bail as aforesaid, against said Ogden, for the sum of 3693 dollars 83 cents debt or damage, and 136 dollars 90 cents costs, as by the record thereof remaining appears ; and which judgment now remains in full force; and that said Ogden has not abided or performed said judgment, but has avoided, and a return of non est inventus has been duly made on the execution which issued on the said judgment. And this they are ready to • veri fy by said record; and they pray said record may be seen and inspected by the Court here. Wherefore they pray judgment, and that they may have execution, &c.
    The defendant rejoins that the judgment of November, 1807, was not the final judgment, in the suit commenced at the Common Pleas in July, 1803 ; but that final judgment was rendered in that suit November term, 1805; and that there is no such [ * 344 ] record of final judgment in said action, * wherein he became bail, as the plaintiffs have alleged; and he also prays that the said record may be inspected here, and that the plaintiffs may not have execution against him, and for his costs.
    The cause was argued at the last March term in this county, by Dexter for the plaintiffs, and Otis and Sullivan for the defendant.
    
      Dexter
    
    contended that the judgment on review is properly to be considered as the final judgment in the original suit. Under the existing statute, granting reviews in civil actions,  the first judgment is vacated, by bringing the review, and a new trial of the same action is had. The language of the statute is, that the party may review the same cause, and have one trial more; that there shall be no further pleadings, but the action shall be tried by the issue originally joined ; and when either party shall bring a review, the whole cause shall be tried in the same manner as if no judgment had been given thereon; the statute in every part of it considering a review merely as a further proceeding in the original action.
    Where a defendant reviews, as was the case here, and judgment is given for the original plaintiff, such judgment can never be considered as rendered upon the defendant’s writ of review, but must oe founded on the plaintiff’s original writ, and the bail must therefore be answerable where their principal avoids upon such judgment.
    The writ of review, under the present statute, is a judicial writ, to which the party cannot plead; whereas the writ, under the former provincial act,  was in nature of an original writ, upon which property might be attached, or the defendant in review held to bail, and each party had “ the benefit of any new plea and evidence.”
    
      For the defendant,
    
    it was insisted that the judgment rendered in this Court, on the original writ and declaration, was the final judgment in the action, in which the defendant became bail. It was rendered by the highest court of appellate jurisdiction, and the party recovering it had a * right to demand his [ * 345 ] writ of execution; unless the plaintiff in review would give him sufficient security that the judgment in the review should be satisfied. No such security having been given in this case, the plaintiffs had a right to sue out execution, as they did, and it was then their duty, if they would avail themselves of their remedy against the bail, to sue out their scire facias within the year from entering up their judgment. 
    
    By the statute of 1784, c. 28, § 11, it is enacted that “all goods and estate attached upon mesne process, for the security of the debt or damages sued for, shall be held for the space of thirty days, after final judgment, to be taken in execution.” If the final judgment in this provision should be construed to be the judgment which may be rendered upon a review, then property attached must be held by the officer for the space of two years from the rendition of judgment in any original action ; for so long is a party aggrieved by judgment allowed to bring his writ of review; and in cases of the disabilities mentioned in the statute,  the two years are to run from the removal of those disabilities.
    
      
      
        Stat. 1786, c. 66
    
    
      
       13 Will. 3, c. 16.
    
    
      
      
        Slat. 1784, c. 10, § 3.
    
    
      
      
        Slat. 1786, c. 66, § 1.
    
   The cause stood over to this term, when the opinion of the Court was delivered to the following effect by

Parsons, C. J.

In this writ, the plaintiffs pray execution of a judgment recovered by them against Abraham Ogden, at the November term of the Supreme Judicial Court, holden at Boston, and 'or whom the defendant was bail.

The defendant has pleaded in bar of execution against him, that he was bail for Ogden, in a suit commenced against him by the plaintiffs, in which final judgment was recovered against Ogden, at the November term of the Supreme Judicial Court, holden at Boston, in 1805, on which judgment an execution had been duly issued and returned unsatisfied; and that the judgment recited in the scire facias was recovered at the November term of the Supreme Judicial Court, holden at Boston, in 1807, on a writ sued by [*846] Ogden against *tbe plaintiffs, to review the former judgment recovered in 1805, and that on this last writ he was not bail for Ogden.

The plaintiffs reply, that the judgment recited in their scire facias was the final judgment on the original writ sued by them against Ogden, on which the defendant was his bail, which judgment was rendered at the said November term in 1807, which they are ready to verify by the record.

The defendant rejoins, that there is no such record of the final judgment alleged by the plaintiffs in their replication.

Upon these pleadings, the record has been submitted to the inspection of the Court, whence it appears that the judgment, of which execution is prayed against the defendant, was in fact rendered on the writ sued out by Ogden, to review the first judgment; but whether it is also the final judgment rendered on the original writ prosecuted by the plaintiffs against Ogden, in which the defend-, ant was bail, is the question remaining for the consideration of the Court.

The writ of review in civil actions is provided by statute, to cor rect errors in judgments rendered on verdicts, and is unknown at the common law. Either party, against whom two verdicts have not been found, may sue his writ of review as of right, returnable to this Court, from which it must issue, to correct the errors in fact of the judgment rendered on verdict. Upon the return of the writ, the whole cause is subject to revision on the former pleadings, and no amendments 'can be made, or any new issues joined ; and the jury may find their verdict for the original defendant, or for the original plaintiff, with greater or less damages than he recovered at the former trial, whichever party shall sue the writ of review. By comparing the two verdicts, the error of the former verdict, if any, is apparent; and this error will be corrected by the judgment on the review.

[ * 347 ] * This is a short statement of this singular process; and it has been argued by the plaintiffs in scire facias, that the judgment in review is in law a final judgment upon the original writ, within the statute of 1784, c 10, regulating bail in civil actions.

By this statute, the bail upon the original writ are not holden, unless the scire facias against them be served on them within one year next after the entering up of final judgment against the prin cipal.

The provincial statute of 5 Will. & Mar. c. 5, of which the other statute is a revision, limits the suing of a scire facias against the bail to one year after the first trial. As the original writ is returnable to the Court of Common Pleas, where a judgment is rendered, from which either party aggrieved may appeal to this Court, where a new judgment is rendered, it was formerly contended, that the first trial intended in the provincial statute, was that on which judgment was rendered at the Common Pleas. But a different construction of that statute always prevailed; because, as no execution could be sued in the Common Pleas, on a judgment from which an appeal was entered, the principal, by entering an appeal, which he could do of right, might always discharge his bail. The first trial, mentioned in that statute, was holden to be the trial, on which the first judgment, on which the plaintiff might sue an execution, was entered. Thus, if there was no appeal from the Common Pleas, the judgment there rendered was the first judgment; but if there was an appeal, the judgment in this Court was the first judgment.

In the revision of the statute we have been considering, the legislature, instead of retaining the former phrase of first trial, have substituted the expression of final judgment; leaving the construction without alteration.

If the final judgment in the last statute should be taken to be the judgment on review, great mischiefs would be * the consequence. Either party might review at any [ * 348 ] time within two years after entering judgment on the appeal. The bail might, therefore, be holden for several years; when the situation and property of the principal might be essentially changed, and a party arrested might find it impracticable to procure bail. And after the entering of judgment on the appeal, and until the return and entry of the writ of review, no suit would be pending, so that the bail could surrender the principal; and were the bail, as the keeper of the principal, to take him into his own custody and imprison him, after detaining him two years, no writ of review might then be sued out, and the principal would be discharged, after having been confined a long time, without benefit to any person, and to his own great damage.

Nor is there any inconvenience in giving the statute of 1784 the same construction as the statute of W. & M. received. For if the plaintiff should review, his writ might be an attachment, on which he might take new security. And if the defendant should review, the plaintiff might still execute his judgment recovered on the appeal, in which the bail would be holden, unless the defendant gave bond to stay the plaintiff’s execution ; and in that case the bond would be adequate security.

It is therefore our opinion, that the final judgment, mentioned in the statute of 1784, is the first judgment on which the plaintiff may sue out an execution. If no appeal lies from the judgment of the Common Pleas, or if none is made, that judgment is final; or, if there is an appeal, then the judgment on the appeal is final; for on either of these judgments execution may issue.

The judgment of the Court must be, that there is no such record as the plaintiffs have averred in their replication, and that the de fendant recover his costs.  