
    Joseph Keen, Jun., Plaintiff in Error, versus John Turner, Executor, &c.
    Error lies to the Circuit Court of Common Pleas, where they dismiss an action without trial which was brought by appeal from a justice of the peace to that Court; and a trial will be had in this Court of the issues joined before the justice.
    The original action was brought before a justice of the peace for the County of Plymouth, by Keen against the defendant in error, upon certain promises made by his testator. The plaintiff recovered judgment, from which Turner appealed to the Circuit Court of Common Pleas. After two continuances in that Court, and when the cause was coming on for trial, the defendant’s counsel moved, “ that the papers in the action be quashed” ; and the Court, after hearing the parties, made an order accordingly; and in effect dismissed the appeal, without entering a formal judgment for either party.
    The plaintiff assigns for error the refusal of the Court to permit him to proceed to a trial of the issue joined in * the action, and the dismission of it without rendering any proper and legal judgment.
    
      B. Whitman, for the defendant in error,
    contended, that error did not lie in this caso, as there was no judgment entered by the Court below ; and that ti-e plaintiff’s only remedy was a mandamus to the Circuit Court of Ctn-mon Pleas, upon which that Court might certify the reasons for the t vder which they made. And he suggested that there were sufficient l s.xsons, although they did not appear upon the record.
    
      Winslow, for the plaintiff in error,
    cited the cases of Lamphear vs. Lamprey, 
      
      Tappan vs. Bruen, 
       and Keyes vs. Stone; 
       and he contended, that the principles established with regard to appeals applied with equal foie' to writs of error.
    
      
       4 Mass. Rep. 107.
    
    
      
       5 Mass. Rep. 193.
    
    
      
      
        Ibid. 391
    
   By the Court.

This is an award in nature of a judgment, and it is a final decision of the cause. The plaintiff has lost by it the fruits of the judgment which he recovered in the justice’s court. The effect of that judgment was destroyed by the appeal, which, as far as we can now see, was regularly claimed and prosecuted. The plaintiff was then entitled to a new judgment in his favor; unless, upon some issue in law or fact, the ra ise should have been determir-ed against him ; or unless, after a verdict for him, the judgment shou’d hav e been arrested. There is no issue of law joined on the record ; and there has been no trial of the issues of fact. The judgment p* the Circuit Court of Common Pleas being thus substantially erroneous, the irregular form in which it was entered cannot oust this Court of its jurisdiction of the cause. We must now enter such judgment as that Court should have entered. It cannot be known what that judgment should be, until after a trial of the issues of fact. The judgment of the Court below is reversed ; and a venire facias de novo must be awarded.  