In the original suit judgment was recovered on default against three individuals, alleged to have been co-partners and joint promissors, of whom the petitioner was one, who now claims a review of that action under R. S., ch. 123, s. 1, giving this court authority to grant reviews, “ whenever they shall judge it reasonable, and for the advancement of justice, without being limited to particular cases.”
It was contended at the hearing that one of several defendants could not maintain a petition for review in his own name; but the judge ruled otherwise.
By ch. 124, ss. 6 and 7, an action of review is to be tried on the issue joined in a former suit, or if the former judgment was rendered on default, the proper pleadings are to be made; consequently the original parties must be made the actors. Elwell v. Sylvester, 27 Maine R,, 536.
It appears that two of the original defendants were duly summoned, who, together with the petitioner, were defaulted at the return term. The latter alleges that he had no notice of the pendency of that suit, and was aggrieved by that proceeding, of which fact the judge presiding, it would seem, was fully satisfied. But it is now contended that he is without relief, because the other two do not think proper to join him in his petition, being content, it is presumed, with the judgment as originally rendered, since they have the aid of a stranger to the contract in contributing towards its dis*84charge. To deny the prayer of the petitioner for such cause would leave him wholly without remedy.
On the other hand it may be said that the two debtors are not responsible for the wrong joinder of the third, and that it would operate a hardship to bring them again into court, and compel them, as co-plaintiffs in review, to defend the original suit, which might subject them to additional damages and costs. Our statutes, since the separation, have made no provision, in direct terms, for such a contingency. It has been otherwise in the parent state from 1786 to the present time.' Mass. R. S. of 1836, ch. 99, s. 16, provides that, “ If judgment is recovered against several defendants in the original action, any one or more of them may review the case, in like manner as if he or they had been the only defendants therein; and if the sum recovered in the original suit for debt or damages shall be increased or reduced on the review, the court shall take such order respecting the further proceedings as shall be necessary to carry into effect the two judgments, according to the rights of the different parties.” Under a similar statute was the decision in Emerson v. Pattee, 1 Mass. R., 485.
What occasioned the omission of a similar section in our statute it is diffiult to perceive, unless s. 10 of ch. 124 may be considered as a substitute, which provides that “ the party prevailing in the review shall recover his costs, but this shall not prevent the court, when granting a review on petition, from imposing on him such terms as to costs as they may deem reasonable.” But this provision only refers to the subject matter of costs, and does not authorize the court to impose terms as to the increase of damages. We have serious doubts as to the correctness of the judge’s ruling, and think that further legislation may become necessary to enable the court, as in Massachusests, to do exact justice to the different parties. This case, however, may constitute an exception. Here the two original defendants, who do not appear, were originally defaulted, and judgment was rendered on the amount of the plaintiffs claim in his writ, and on the *85review they will probably submit to a like disposition: consequently they will suffer nothing from an increase of damages, and may only be liable to an increase of cost. And we perceive in the petition a prayer for a supersedeas of the execution which could be granted only upon condition that ho had filed in court the statute bond, which might be an ample indemnity against both damages and costs, so far as it concerns the petitioner’s associates. As to that fact, however, we are not judicially informed, otherwise than, perhaps, we are authorized to infer it from the absence of any adjudication as to costs. At all events the excepting party here has no occasion to trouble himself respecting the joint or several liabilities of the other party.
Exceptions overruled.