That a writ of review may properly be allowed to be brought to reverse a judgment of the court of common pleas rendered upon the complaint of the defendant in review, praying for the affirmation of a judgment of a justice of the peace, seems fully settled by the analogous case of Bowditch Mutual Fire Ins. Co. v. Winslow, 3 Gray, 415. The language of the Rev. Sts. c. 99, § 19, clearly embraces a case of this kind.

When such review is allowed, and the writ properly issued, the case is open to be tried upon its merits, as in other cases of writs of review. It was therefore the duty of the plaintiff in the original action, on the trial of the writ of review, to produce the proper evidence to substantiate his claim, in the same manner as would have been required, had the appeal been duly entered and no proceedings taken place or complaint been filed for affirmation of the judgment of the justice of the peace. The judgment of the justice was no longer a valid judgment, *94because an appeal had been duly taken therefrom. The judgment of the court, of common pleas, affirming that judgment on a complaint, had been opened by the granting of a writ of review. The defendant in error could not therefore properly rest his case upon any former judgment, but must present proper proofs to maintain his claim. The court of common pleas therefore properly ruled that the evidence introduced by the defendant in error did not entitle him to a judgment in his favor.

We perceive no ground for sustaining the position of the defendant in error, that judgment should have been rendered in his favor on account of a variance in the recital of the writ of review as to the nature of the judgment sought to be set aside by the writ of review.

Exceptions overruled