
    
      How, plaintiff in error vs. Merrill, original plaintiff.
    
    
      Practice. This court, after the reversal of a justice’s judgment, will not remand the cause to him for'further proceedings. '
    
    If the judgment of an inferior tribunal is reversed for error in its proceedings in the course of the trial, or in the rendition of judgment, the action itself being well laid, a new trial will be ordered at the bar of this court. But not if there is no foundation in the record itself, on which the action can be sustained.
    This was originally an action of debt before a justice of the peace, brought by Merrill, the clerk of a militia company, to recover a penalty for neglect to appear at a company training. The judgment of the magistrate was reversed on error brought in this court, the of-fence not having been alleged against the form of the statute.
    
      Fessenden, for the original plaintiff,
    then moved the court to remand the cause to the magistrate for further proceedings.
    But the Court denied the motion; observing that* as justices’ courts were not held at stated terms, no party could know when to appear, and si procedendo would be fruitless, if awarded.
    He then moved for a new trial at the bar of this court.
   Per Curiam.

If an inferior court has decided erroneously, upon the evidence before it, or in the admission or rejection of evidence, and this is suggested for error, and the judgment for that cause is reversed ; it has been the practice, to order a new trial at the bar of this court, to correct this mistake of the lower court or magistrate, and give the party aggrieved the benefit of a legal trial.

But if the party himself has not stated sufficient matter or cause of action, it is his own fault, and not that of the magistrate or court; and if for such defect the record is brought before us and the judgment reversed, it is not .usual to order a venire facias de novo ; there being no foundation, in the record itself, on which the cause can be sustained. The defect in the case at bar is radical, going to the ba-sas of the plaintiff’s claim; and therefore tbit;

Motion is denied.  