The opinion of the Court was pronounced by

This cause came before us on a demurrer to the defendant’s plea. A writ of review must set forth the fact on which the party relies, as a ground for the relief asked for. It does not at once bring forward the original action, as has been argued; but it may be met by a plea or demurrer as other writs. The Statute of Limitations may be plead to the writ, and though the defencés which may be set up are not many, still the facts which constitute a defence, and which afford sufficient reason *566wb.y the review should not be granted, may be plead in bar to the writ. The statute contemplates a trial, or at “any rate that there may be a recovery on the writ and damages awarded if the execution or any part is collected. A recognizance is taken before issuing execution on the judgment on which a review may be asked for,'to refund.and pay back what may be recovered on the writ of review. The question before us is, whether the plea of the defendant in this suit, is such as he may interpose to avoid the review.

It has been laid down in the case of Marvin vs. Wilkins, 1 Aik. 107, and it is a correct proposition, that no review can be allowed except in cases where it is given by statute. But inasmuch as this writ is given for the purpose of relieving one, against whom a judgement is rendered in his absence from the State, and who has no notice of the suit, and as it is contrary to the very first principles which obtain in relation to proceedings in courts of justice, and in relation to judgements, that any judgement shall be valid, rendered against a man whp has no notice or knowledge of any proceedings against him, and as the object of the writ is simply to obtain a trial of the matter in controversy between the parties, when no trial has been had ; the statute in question ought to receive a liberal construction, so as to advance the remedy given therein.

The plea in this case denies the fact that Davis was out of the State at the time the judgement against him in favor of Beebe was rendered : this leaves the other fact admitted, to wit, that he had no notice of the suit.

When a judgement has been rendered by a Justice of the Peace against a man who was out of the State at the time, and had no notice, and where no continuance was granted by the Justice, or recognizance taken of the creditor for refunding in case a writ of review should be brought, it has been determined by this Court, in the case of Marvin vs. Wilkins, above referred to, that an Audita Querela is the appropriate remedy for the person against whom the judgement was rendered; but when the cause was confined, and the recognizance taken, the remedy must be by writ of review.

The enquiry then must be, whether, when a plaintiff *567procures a cause to be continued for the purpose of giving notice to a defendant, and further on obtaining a judgement after such continuance, enters into a recognizance to refund and pay back what may be recovered on a writ of review, he is at liberty, when such writ is brought, to treat this as an unnecessary and unmeaning procedure, and contend that his judgement was obtained against a person residing in the State, and having notice of the process.

Now it is conceded, that upon the fact admitted by the demurrer, viz. that Davis had no notice of the process on which the judgement was rendered, that he has a remedy; but it is contended that it should have been by writ of Audita Querela. It appears to us however, that if he had brought such a writ, he would have been told that he had mistaken his remedy, and that he should have brought a writ of review; that the judgement was taken against him, on the supposition that he was out of the State, and had no notice of the suit; and the appropriate security was given by way of recognizance, that the judgement should not prejudice him if it ought not to have been rendered, as was rendered, for too large a sum, and to ensure him a trial on the merits if he wished for it.

In this case, the records of the Justice before whom the original judgement was rendered, are not a part of the pleadings, and must therefore be taken to be as they are set out in the writ. From this it appears that the suit was commenced by Beebe against Davis, returnable the 23d day of August, 1828; that at the return day, the cause was called, and the defendant not appearing, it was continued until the 25th day of the same August, on which day a judgement was rendered by default. — That execution did notissue until the 6th September, 1828, previous to which the attorney for the plaintiff entered into a recognizance agreeably to the statute in that behalf.

These are the proceedings to be had, when it appears to a Justice, before whom a suit is brought, that the defendant was out of the State at the time of commencing the suit, and at the time therein set for trial; and was so remote from the place of trial, at the time to which it was continued,that he could not probably have had notice of the *568suit. It is true that it is not said in words that it appeared to the Justice that the defendant was out of the State; ~ but it is said the cause was continued for notice to the defendant. As the writ was regularly served, and such notice was given, as gave the Justice jurisdiction of the parties, this continuance for notice is equivalent to saying that the defendant had not before had actual notice of the suit; and taken in connexion with the after proceedings, the legal inference therefrom is, that it appeared to the Justice that defendant was out of the State. The result to which we have arrived is, that the proceedings before the Justice is equivalent to a legal adjudication in that suit; that the defendant therein was out of the State, and is not afterwards to be put in issue by a denial of that fact. — That when a plaintiff and Justice have both proceeded on the ground that a defendant was out of the State, and continued the cause, and the requisite security has been entered into for ensuring a trial on the merits, and refunding what may be recovered by writ of review, the plaintiff is not at liberty when such writ is brought as a defence thereto, to select either of these facts, to wit, the absence of the defendant from the State at the commencement of the suit and return of the writ, or his not having notice of the suit and deny them by a plea. — That having made it appear to the satisfaction of the Justice that a defendant was out of the State at the time of commencing a suit, (which it must be taken for granted was done, or the Justice would not have continued the cause for notice and taken the recognizance) he must consider that as a fact not to be disputed in any after proceedings.

The judgement of the County Court is therefore reversed, and judgement must be entered that the plea of the defendant is insufficient, and that the review is allowed.

The cause will be remanded to the County Court for trial of the original action. And whatever the damages the plaintiff Davis, may recover, will be entered as damages in this suit.