Wheeler, J.
It appears by the averments of the petition for certiorari, that the defendant had a good defence to the action before the justice. There is perhaps less certainty, specialty and directness in setting forth the merits of the petitioner’s case, than has generally been held essential, where the legal sufficiency of the petition in these respects has been brought in question by exceptions. And had the plaintiff excepted to the want of certainty in the averments of the petition, his exceptions, by the previous rulings of the Court, must have been sustained. But, by excepting to the petition for the want of equity, and because it did not aver that a new trial had been refused the defendant by the Justice, without objecting the want of sufficiency in the petition in other respects, the plaintiff must, we think, be held to have waived those objections. The only question, therefore, which requires further notice, is whether it was necessary to entitle the defendant to apply for a certiorari, that he should have first made his application for a new trial before the Justice. And we are of opinion that it was not.
*318Justices of the Peace are generally men unlearned in the law. And persons who litigate in their Courts are not supposed to have the advice and assistance of counsel. Were they required to apply for a new trial, it is scarcely to be supposed that, without legal advice, they would be enabled to bring their applications within the rules of the law applicable to that subject, though they might have sufficient legal grounds on which to base the application • or that the Justice would have a sufficient acquaintance with the subject to decide rightly upon the legal suffiiency of the application. And if the party making the application should fail to bring himself within the rules which would legally entitle him to a new trial, there would be quite as much reason in law to refuse his application for a certiorari on that ground, as there can be for refusing it because he did not make the application. Besides, it is not to be supposed that such application would in general be of any avail. If the Justice has decided, without the intervention of a jury, it is not likely that he will reconsider his judgment; and it 'would be but to ask him to decide again what he had already decided ; except where the application might be founded upon matters arising subsequent to the trial, which would seldom be the case. And if there has been the intervention of a jury the propriety of whose verdict is in question, it is not to be supposed that the Justice would be more competent than they to decide whether their finding was in accordance with law and the evidence. Indeed the doctrines respecting the granting of new trials can scarcely be said to have any proper application to trials before a Justice of the Peace. Practically, in the nature of the case, they can have none. It would be idle to require or expect their observance. And to require the application to be made, before entertaining a petition for a certiorari, would be to protract the. litigation before the Justice to no purpose; and would- impose on parties litigant unnecessary burdens, in order to obtain a redress of the grievance, and a serious one it may sometimes be felt to be, of an unjust or illegal judgment rendered by a Justice *319of the Peace. If a party must apply to the District Court for relief from such a judgment, and is under the necessity of obtaining legal advice for that purpose, it will be, in general, less expensive and more convenient to apply to that Court in the first instance, without the necessity of a formal application to the Justice for the interposition of the equitable power of granting relief by awarding a new trial; which, if he possesses, he can scarcely be supposed to have the requisite legal knowledge to know .how rightfully and legally to exercise.
We conclude that it was not necessary for the defendant to have applied for a new trial before the Justice, and, of course, that the petition was not insufficient in the respect indicated by the exception.
We are of opinion also that the Court erred in giving judgment against the petitioner and his sureties for the amount of the judgment of the Justice, after having dismissed the petitioner’s case, without having given him a hearing on the merits.
The judgment is therefore reversed and the case remanded for further proceedings.
Reversed and remanded.