
    Lyman Hall, Plaintiff in Review, versus Moses Wolcott
    In an action pending in the Common Pleas, the defendant demurred to the plaintiff’s declaration, reserving the right of waiving his demurrer in this Court, and agreeing that the plaintiff should have the benefit of a verdict at that term, — this was waiving the defendant’s right of'review, but not the plaintiff’s; who, obtaining a verdict in this Court, with which he was dissatisfied, sued his writ of review, and it was maintained.
    When a plaintiff in review is not entitled to his review, this Court will quash the writ on motion, or abate it ex officio, on the discovery of the defect
    This was a review of an action of the case for slander, in which Hall was plaintiff, and Wolcott defendant. The plaintiff laid his damages at 4000 dollars. The defendant, at the first term in the Common Pleas, had leave to plead double; and after one continuance, “ reserving the right of waiving his demurrer and pleading double at the Supreme Judicial Court, and agreeing that the plaintiff shall have the benefit of a verdict at that term, said that the declaration aforesaid was insufficient, and thereof prayed judgment. And the said Lyman, consenting to said reservation, said that the declaration aforesaid was sufficient, and thereof prayed judgment.” The plaintiff had judgment, of course, for the damages alleged by him, and the defendant appealed. Upon the appeal being entered in this Court, the defendant waived his demurrer, and pleaded the. general issue, which was joined by the plaintiff, and also a special justification, on which an issue in fact was also joined. On the trial of these issues the jury returned a verdict for the plaintiff, * assessing his damages at twelve dollars, for [ * 219 ] which sum judgment was entered, with six dollars costs.
    In the writ of review the plaintiff says that he is greatly aggrieved by the said judgment, and is deprived of a large sum in damages and costs, which he ought to have recovered of the defendant, and that no verdict has been given against him in said action, and two years have not elapsed, &c.
    The defendant in review pleads in abatement of the writ, and in his plea recites the history of the proceedings in the original action alleging that the plaintiff, by consent of the defendant, had the benefit of a verdict. To this plea the plaintiff demurs, and the defendant joins the demurrer.
    
      Ashmun and Hulbert for the plaintiff in review.
    
      Dewey and Noble for the defendant in review.
   Sewall, J.,

delivered the opinion of the Court.

The defendant pleads, in abatement of the writ of review, that the judgment recovered in the Common Pleas, upon his demurrer there to the original writ and declaration, was entered for the plaintiff, and, by the consent of the defendant, the plaintiff had in that judgment the benefit of a verdict.

The agreement is of record, and is a part of the proceedings set forth in the writ of review ; and without a plea the defendant would be entitled to this exception to the writ, in any stage of the proceedings on the review. And in all cases, where the plaintiff in review is not entitled to the privilege granted by the statute, it is the duty of the Court to abate the writ ex officio, on the discovery of the defect; for a judgment on a writ of review, not permitted by the statute, would be erroneous, and liable to be reversed upon a writ of error. A writ of review, although of right, as it is in the special cases designated by the statute, is in the nature of a judicial writ; and when sued in the name of a party not entitled to it, if it is not void, it is voidable, and may be quashed on motion, as well as abated by plea. I mention this, because a motion, as it may be satisfactorily determined the first term, would be oftentimes productive of less delay and expense than a'plea and demurrer, which must necessarily remain until the law term.

* We have examined the agreement relied on as con elusive against this writ of review. In the first place, it is not an agreement by the plaintiff, but one which he has accepted, when proffered on the part of the defendant; and the consideration for it is a permission of delay, and in latitude of pleading, accorded to him by the plaintiff. Under these circumstances, the words of the agreement are not to operate as an estoppel to him, or as depriving him of any privilege, unless this should be found to be their necessary and unavoidable construction and effect.

This, however, is certainly not the case ; and what the defendant contends for is not even the most obvious construction. The pur- . pose of the demurrer was an appeal from the Common Pleas to this Court; and the effect of the reservation, independently of the agreement by the defendant, would have been to place the action by the appeal on the same footing in the Supreme Court as if it had been originally commenced there. The appeal avoids the judgment, and the reservation of waiver avoids the pleadings, at the election of the defendant, when he enters the action appealed. The consequence is, that one verdict in the Supreme Court is not final to either party, but leaves the action open to a review, if the defendant waives the demurrer and pleads to issue ; and if he does not, then an inquiry of damages, necessary to ascertain the quantum of damages recoverable on the demurrer, would be conclusive on both parties; that is, the action would not be open to a review of right. The defendant therefore proposes to the plaintiff, if he accedes to the reservation in the defendant’s plea, that the review shall not be open on his part. This is the effect, and, as I conceive, the whole effect, of an agreement that the plaintiff shall have the benefit of a verdict. It is a direct allusion and reference to the statute of reviews, [1786, c. 66,] the particular provision of it which entitles either party to a review, so long as there has been only one verdict against him, — one verdict of which he may think he has cause to complain.

Now, a restraint, proposed and accepted as a benefit [ * 221 ] * to the plaintiff, must be, not a privation of his right of review, but a concession of the defendant’s. It is equivalent to a stipulation of frequent use in other counties, but more cautiously expressed in these words; the party making it, plaintiff or defendant, agrees that one trial shall be final on his part.

The defendant might have concluded the plaintiff from his right of review, by not waiving his demurrer, and having the cause finally determined upon an inquiry of damages, if the declaration was sufficient. But the pleadings in the Common Pleas having been withdrawn, and issues to the country joined upon the appeal, there has been, in truth, but one trial in this cause. If the defendant is precluded from his review, it is the effect of his consent to waive that privilege; but the plaintiff has not subjected himself to any such disadvantage.

Upon this opinion being pronounced, the counsel for the defendant in review withdrew the plea in abatement, and the action stood for trial upon the original pleas. 
      
       1 D. & E. 267, 469.— Barnes, 431. 1 Lord Raym. 97, 98. —3 Lev. 275.
     