
    * Ex Parte Isaac Packard, Petitioner, &c.
    A review may be granted on the petition of a trustee, who has suffered a default upon a scire facias.
    
    The said Packard sets forth in his petition that he is a partner, with one Gowen, in a commercial house in the Havana; that said Gowen, in the year 1812, received a sum of money from one Butters, for which he gave an accountable receipt of the said firm ; that afterwards, in the same year, he, the said Packard, was summoned as the trustee of said Butters by T. Kidder f Al.; and that judgment has been rendered against him on a scire facias for 1630 dollars 50 cents debt and 15 dollars 20 cents costs; upon which judgment execution hath issued. The petitioner further states that, since the rendition of that judgment, he has been informed, and verily believes, that the said Butters has drawn a bill of exchange upon the said firm in the Havana, which has been paid, and thereby a very small sum remains due to the said Butters from the pet'tioner, or from the said firm. Wherefore he prays for a supersedeas of the said execution, and for a review in the premises, that he may be enabled to answer as trustee in this Court, and be charged only for the sum actually in his hands. .
    
      Aylwin, for the respondent,
    suggested a doubt whether a review could be granted in this case; and he referred to the case of Dickinson vs. Davis, 
       where the Court say that, where a review is grantable, the cause must be triable on the review; intending, no doubt, that there must be an issue to be tried, which cannot be in this case.
    
      Selfridge for the petitioner.
    
      
       4 Mass. Rep. 520.
    
   Per Curiam,.

We do not recollect an instance of a review granted at the instance of a trustee. But the words of the statute are very comprehensive, and leave us no doubt of our authority in the case. Let the petitioner take his review; but, under the circumstances of this case, he must first pay to the plaintiffs in the original suit the costs of that suit, and also of the scire facias.

ADDITIONAL NOTE.

[A writ of review lies for one who has been charged as trustee, either by accident or mistake, in the Court of Common Pleas.—Brigham, vs. Elliot, 12 Pick. 172.

See Emerson vs. Paine, 9 Verm. 271 — F. H.]  