Byrnes v. Piper

5 Mass. 363

Opinion

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.