
    Francis Howe, Plaintiff in Review, versus Joseph Hapgood, Executor.
    Where a party has obtained a review by petition, pursuant to the provisions of the statute of 1788, c. 11, the other party cannot afterwards review the same action under the statute of 1786, c. 66.
    The defendant in review, at the last October term in this county, at which term the writ of review was returnable, filed a motion to quash the writ, on the ground that no provision of law authorized the issuing it. The facts were as follows. Judgment having been rendered against the said Hapgood, in his said capacity of executor, in the Court of Common Pleas, by default, he petitioned this Court, October term, 1813, and obtained leave to bring his writ of review upon that judgment; upon which writ of review the said judgment of the Common Pleas was reversed, and he recovered his costs. And, forasmuch as the said Howe had, in fact, had the benefit of one review, the defendant in review alleged that he was not entitled by law to his present writ, and that the same ought to be quashed Hoar, for the plaintiff in review.
    Draper, for the defendant in review.
   The motion was continued for advisement, and, at this term, the opinion of the Court was delivered by

Parker, C. J.

The action, attempted to be reviewed under this writ, was itself tried upon a review, which was * granted upon a petition to this Court, pursuant to the statute of 1788, c. 11. This writ is brought, as of right, under the statute of 1786, c. 66, which provides that either party aggrieved at a judgment in an action, where only one verdict has been returned against him, shall be entitled to his review. There having been but one verdict in this case, the judgment of the Court of Common Pleas having been rendered upon default, the plaintiff in review thinks himself entitled to maintain this suit under the nrovisions of the statute last cited.

But we are all satisfied that he is mistaken, and that the statute does not apply to a case situated like this. The legislature had regard to the ordinary course of actions, in which there has been a trial. It is provided that the review shall be tried upon the same pleadings and issue. The case of a default was not provided for. The subsequent statute provides for that case, and gives authority to the Court to grant a review in all cases in which they may deem it reasonable. This review once granted, the whole cause may be fully tried ; and no other review cap be had ; except the Court, m their discretion, should determine that justice requires still another trial.

The remedy for the present plaintiff, if he is aggrieved, is to petition the Court; for, by the last statute of 1791, c. 17, we may, in all cases, and as often as justice requires, grant reviews upon petition, on such terms as we may think equitable and just. The action is dismissed.  