How v. Merrill , 5 Me. 318 ( 1828 )

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.