
    
      W.M. WATSON & CO. vs. CLARE, CURATOR.
    Appeal from the court of the sixth district.
    Where the appellant without any fault of his, is unable to bring up the case, so that the merits can be examined, the cause will be remanded for a new trial.
   Martin, J.

delivered the opinion of the court. That plaintiffs and appellants oppose the application of the appellee to dismiss the appeal, on the ground of the insufficiency of the statement of facts, by shewing that the judgment was rendered before the code of practice went into operation, and that these appeals from the courts of probates were returnable to the district court, who heard the cause de novo and received evidence that had not been offered below.

He urges that the code ought not to place him in a worse situation, by compelling him to produce the statement of facts required here, while nothing made it binding to procure it below, at the time the judgment was given.

West'n Dis'ct

October, 1826

Rost for the plaintiff, Wilson for the defendant.

As the plaintiff find themselves without their fault, unable to place the merits of the case before us, we think they are entitled to relief, and we cannot afford it otherwise than by remanding the cause for a new trial, as we are authorised to do, whenever justice cannot be attained otherwise. Porter vs. Dugat. 9 Martin.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be annulled, avoided and reversed, and the case remanded for a new trial, the appellee paying costs in this court.  