Ladd, J.
It is nowhere distinctly stated in the petition that justice was not done on the first trial. It is alleged, however, that the suit was founded on an indemnity bond ; and that if a new trial is granted, the plaintiff expects to prove, in addition to the evidence produced by him on the former trial, the execution and delivery of said bond'; and [222]*222that he has made diligent and thorough search among- all his papers, and is unable to find the same.
This appears to be equivalent to an allegation that on the former trial the execution-and delivery of the bond were not proved;- and inasmuch as the suit was debt upon the lost bond, it would seem to be clear that it must have failed for this reason; and we are inclined to hold that this constitutes a sufficient statement that- justice was not done on the former trial.
The fact thus gathered somewhat inferentially from the petition, appears affirmatively in the proof.
Judge Bell, who tried the cause, found as matter of fáct that the-plaintiff did not show a search for the bond sufficiently thorough, so that he could be allowed to introduce secondary evidence of its contents. The court above approved this finding, and declined to revise it for the further reason that it was purely a question of fact for the judge who tried-the case.
The plaintiff therefore failed on that trial to produce the only evidence upon which his suit could stand, and the result was a judgment for the defendant for his costs.
Assuming that such a bond was in fact executed, and- that by its terms the defendant was bound to refund to the plaintiff the amount paid by him on the judgment in favor of -Mrs. Clough, it needs no argument to show that justice was not done on the former trial.
It is not alleged in the bill, and there is no evidence, that this failure of justice was occasioned by accident, mistake, or misfortune; but the' plaintiff says that he intended to avail himself of his legal right to a review, and that it was through accident and misfortune that a writ of review was not taken out within the time limited by statute for a review as matter of right.
But it is contended by the defendant upon the authority of Smith v. Cole, 18 N. H. 280, that this is not such accident, misfortune, or - mistake as brings the case within the remedy- provided by the statute. It is true that in Smith v. Cole the broad doctrine is laid down that- a petition for review will not be entertained if the petitioner is entitled of right to review, and the construction there put upon the statute would clearly exclude the present case from the remedy:
But exactly the- contrary was held in the later cases of Coburn v. Rogers, 32 N. H. 372, and Chase v. Brown, 32 N. H. 130,—the decision in Smith v. Cole not having been published at the time these later cases were decided.
It is to be observed that the facts reported in the case of Smith v. Cole show that the decision was right. It appeared there that the petition for a' review was commenced before the expiration of the year within which the petitioner might have commenced his writ of review as matter of right;- so that he did not lose the opportunity of a second trial by any accident, mistake, or misfortune, but simply mistook his remedy. Had the doctrine of Coburn v. Rogers been applied, the same result must probably have been reached. Thus, while the decision itself appears to be correct, the broad general proposition upon which it [223]*223is placed, namely, tliat a review cannot be granted upon petition in any case where the petitioner had a right of review under the statute, is not tenable.
The facts did not suggest the inquiry whether the statute was intended to provide a remedy where a review was lost by accident or mistake, and it is probable the attention of the court was not directed to that subject at all.
We think the case of Smith v. Cole must be considered as overruled by the subsequent cases referred to; and we are thus brought to the inquiry whether the plaintiff in this case lost his opportunity of review through accident, misfortune, or mistake.
The plaintiff swears that he was advised by his counsel, at the time of' the trial in October, 1863, that he could have a second trial as matter of right by paying the cost; that he instructed his counsel, in ease the decision was adverse to him, to take the necessary measures for a second trial; that he did not learn of the final decision against him till February or March, 1866, long after his right was gone, and the information was then communicated to him by his attorney, Mr. Shuart.
Mr. Shuart says he did not learn that judgment had been rendered on the finding of the court for the defendant until December, 1865, he having been away in the army; and it appears by his testimony and that of Judge Foster that letters seasonably written by the latter to the former, communicating the result of the case, miscarried, or, at all events, failed to reach Mr. Shuart, without fault, so far as appears, on the part of either of those gentlemen.
This evidence taken together leaves no room for doubt that the plaintiff would have had another trial of the cause by review, but for the failure of Judge Foster’s letters to reach Mr. Shuart — a mischance which seems to be as clear a case of accident as can well be conceived.
From these observations it will be seen that we are of opinion, from the evidence presented to us, that justice was not done in the first trial, and that it was through accident and misfortune that the plaintiff did not have a review while that course was open to him.
By the terms of the statute it must also appear that a further hearing would be just and equitable.
To bring the case within this provision, the court ought to be satisfied that the cause of the failure of justice on the first trial can, and probably will, be removed on a new trial; in other words, that the result is likely to be changed.
Upon this point it seems to be sufficient to suggest that at the first trial the bond upon which the suit rested was ruled out for the reason that no sufficient search had been made for it. It requires no proof to show that this fatal defect in the plaintiff’s evidence can be supplied on another trial. It may be said to be absolutely certain that a search can be made for the bond so thorough and exhaustive as to render sec[224]*224ondary evidence of its existence and contents admissible to go to the jury. _
_ This being so, without going any further, it seems to us a further hearing would be just and equitable. It is suggested that the plaintiff did not exercise ordinary caire and diligence in allowing so long a time to elapse after the trial in October, 1863, the result of which he knew, without taking measures to inform himself as to the position of his case, and that by such neglect he has forfeited his claim to the equitable consideration. of the court. It appears from the evidence that the plaintiff was informed, soon.after the trial in the fall of 1863, that the cause had been transferred on questions of law; and it does not appear that he had any knowledge of the probable length of time it would be pending in the law term.
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Ladd, J.
It is nowhere distinctly stated in the petition that justice was not done on the first trial. It is alleged, however, that the suit was founded on an indemnity bond ; and that if a new trial is granted, the plaintiff expects to prove, in addition to the evidence produced by him on the former trial, the execution and delivery of said bond'; and [222]*222that he has made diligent and thorough search among- all his papers, and is unable to find the same.
This appears to be equivalent to an allegation that on the former trial the execution-and delivery of the bond were not proved;- and inasmuch as the suit was debt upon the lost bond, it would seem to be clear that it must have failed for this reason; and we are inclined to hold that this constitutes a sufficient statement that- justice was not done on the former trial.
The fact thus gathered somewhat inferentially from the petition, appears affirmatively in the proof.
Judge Bell, who tried the cause, found as matter of fáct that the-plaintiff did not show a search for the bond sufficiently thorough, so that he could be allowed to introduce secondary evidence of its contents. The court above approved this finding, and declined to revise it for the further reason that it was purely a question of fact for the judge who tried-the case.
The plaintiff therefore failed on that trial to produce the only evidence upon which his suit could stand, and the result was a judgment for the defendant for his costs.
Assuming that such a bond was in fact executed, and- that by its terms the defendant was bound to refund to the plaintiff the amount paid by him on the judgment in favor of -Mrs. Clough, it needs no argument to show that justice was not done on the former trial.
It is not alleged in the bill, and there is no evidence, that this failure of justice was occasioned by accident, mistake, or misfortune; but the' plaintiff says that he intended to avail himself of his legal right to a review, and that it was through accident and misfortune that a writ of review was not taken out within the time limited by statute for a review as matter of right.
But it is contended by the defendant upon the authority of Smith v. Cole, 18 N. H. 280, that this is not such accident, misfortune, or - mistake as brings the case within the remedy- provided by the statute. It is true that in Smith v. Cole the broad doctrine is laid down that- a petition for review will not be entertained if the petitioner is entitled of right to review, and the construction there put upon the statute would clearly exclude the present case from the remedy:
But exactly the- contrary was held in the later cases of Coburn v. Rogers, 32 N. H. 372, and Chase v. Brown, 32 N. H. 130,—the decision in Smith v. Cole not having been published at the time these later cases were decided.
It is to be observed that the facts reported in the case of Smith v. Cole show that the decision was right. It appeared there that the petition for a' review was commenced before the expiration of the year within which the petitioner might have commenced his writ of review as matter of right;- so that he did not lose the opportunity of a second trial by any accident, mistake, or misfortune, but simply mistook his remedy. Had the doctrine of Coburn v. Rogers been applied, the same result must probably have been reached. Thus, while the decision itself appears to be correct, the broad general proposition upon which it [223]*223is placed, namely, tliat a review cannot be granted upon petition in any case where the petitioner had a right of review under the statute, is not tenable.
The facts did not suggest the inquiry whether the statute was intended to provide a remedy where a review was lost by accident or mistake, and it is probable the attention of the court was not directed to that subject at all.
We think the case of Smith v. Cole must be considered as overruled by the subsequent cases referred to; and we are thus brought to the inquiry whether the plaintiff in this case lost his opportunity of review through accident, misfortune, or mistake.
The plaintiff swears that he was advised by his counsel, at the time of' the trial in October, 1863, that he could have a second trial as matter of right by paying the cost; that he instructed his counsel, in ease the decision was adverse to him, to take the necessary measures for a second trial; that he did not learn of the final decision against him till February or March, 1866, long after his right was gone, and the information was then communicated to him by his attorney, Mr. Shuart.
Mr. Shuart says he did not learn that judgment had been rendered on the finding of the court for the defendant until December, 1865, he having been away in the army; and it appears by his testimony and that of Judge Foster that letters seasonably written by the latter to the former, communicating the result of the case, miscarried, or, at all events, failed to reach Mr. Shuart, without fault, so far as appears, on the part of either of those gentlemen.
This evidence taken together leaves no room for doubt that the plaintiff would have had another trial of the cause by review, but for the failure of Judge Foster’s letters to reach Mr. Shuart — a mischance which seems to be as clear a case of accident as can well be conceived.
From these observations it will be seen that we are of opinion, from the evidence presented to us, that justice was not done in the first trial, and that it was through accident and misfortune that the plaintiff did not have a review while that course was open to him.
By the terms of the statute it must also appear that a further hearing would be just and equitable.
To bring the case within this provision, the court ought to be satisfied that the cause of the failure of justice on the first trial can, and probably will, be removed on a new trial; in other words, that the result is likely to be changed.
Upon this point it seems to be sufficient to suggest that at the first trial the bond upon which the suit rested was ruled out for the reason that no sufficient search had been made for it. It requires no proof to show that this fatal defect in the plaintiff’s evidence can be supplied on another trial. It may be said to be absolutely certain that a search can be made for the bond so thorough and exhaustive as to render sec[224]*224ondary evidence of its existence and contents admissible to go to the jury. _
_ This being so, without going any further, it seems to us a further hearing would be just and equitable. It is suggested that the plaintiff did not exercise ordinary caire and diligence in allowing so long a time to elapse after the trial in October, 1863, the result of which he knew, without taking measures to inform himself as to the position of his case, and that by such neglect he has forfeited his claim to the equitable consideration. of the court. It appears from the evidence that the plaintiff was informed, soon.after the trial in the fall of 1863, that the cause had been transferred on questions of law; and it does not appear that he had any knowledge of the probable length of time it would be pending in the law term. We are inclined to think that when men, engrossed, perhaps, in other affairs, place a matter of this sort in the hands of their professional advisers, it is natural and reasonable that they should rely upon those advisers for all the information in respect to the progress of the suit in court upon which it may be necessary for them to act; and that, therefore, the plaintiff was not guilty of such negligence in this respect as to forfeit his claim for relief.
The saíne remark, substantially, may be made in regard to the further suggestion of delay in commencing this petition after he learned of the judgment against him upon the order from the law term.
The result is, that a new trial by way of review
Must be granted.
See 49 N. H., pp. v and vi (Reporter’s note). Reporter.