
    The People, on the relation of Mattice, vs. Schoharie Common Pleas.
    Where an er-fore °a° justice on the tnai of acause,whether with or without a jury, the ap™«z7 in aU remedáis 'by certiorari.
    
    Motion for a mandamus. At the last term an alterna» tive mandamus was directed in this case, (1 Wendell, 316,) anc¡ the return of the common pleas now coming in, shewing r ° cause, &c. a peremptory mandamus was asked for.
   By ihe Court, Sutherland, J.

On further reflection, we are satisfied that the common pleas decided correctly in quashing the appeal. The remedy of the party was by certiorari. An appeal lies where a suit is tried before a justice, and judgment is rendered either upon a verdict or without any jury trial, and either party conceives himself aggrieved by such judgment. (Statutes, 6th vol. c. 295.) The statute contemplates a trial on the merits. In this case the trial was not on the merits, but on a collateral point, and which besides was wholly irregular. The justice, as he returns, nonsuited the plaintiff, but it was not a judgment of nonsuit which was rendered ; it was a discontinuance of the action, and no more, on the assumption on which the justice proceeded, viz. that the plaintiff did not appear at the time to which the cause had been adjourned. The motion for a peremptory mandamus is therefore denied.

Motion -denied.  