
    William Byrnes, Petitioner for a Review, versus Ebenezer H. Piper and Another.
    
      Practice. Where a petitioner sets forth a legal title to a review, the Court wi not grant it on his petition.
    But in such case, where the petition does not appear to the Court vexatious, ar.d the facts alleged in it are not denied by the respondent, the Court will not award costs to the respondent.
    The respondents had within three years recovered judgment against the petitioner in a suit, wherein his goods, effects and credits had been attached in the hands of his trustees. The petitioner, in support of the prayer of his petition, alleges that he had no notice of the suit, and that during the whole time it was pending, he was absent and without the state.
   The Court refused to grant him leave to review on his [ * 364 ] petition; because, by the eighth section of the statute * of 1794, c. 65., he was entitled to his review as of right, if the allegation in his petition was true. If it was not true, the ground of his petition failed. He might sue his writ of review, and if the respondents should deny his right to it, they might plead in abatement, and on an issue to the country, the jury would settle the facts And it was thereupon ordered that the petitioner take nothing by his petition.

Dewey, for the petitioner.

Ives and Hulbert, for the respondent

The respondents then moved for costs, which were not granted; the Court observing that the petition did not appear vexatious, but was founded on the petitioner’s mistake of his remedy, the fact of his absence not being denied by the respondents.  