on the motion of the appellant. Mason vs. Campbell, 1 Hilt., 291; Redfield vs. Florence, 2 E. D. Smith, 339; Nellis vs. McCarn, 35 Barb., 115. Or where the latter has omitted to object in due season, and allowed the trial to proceed. Cornell vs. Bennett, 11 Barb., 657; Fairbanks vs. Corlies, 3 E. D. Smith, 582; 1 Abb., 150. See also, as to variance between the summons and complaint, being waived by pleading to the merits, without objection at the time, Bandman vs. Gamble, 4 E. D. Smith, 463.

Nor will questions of mere irregularity, not affecting the merits, be considered on appeal. They should be brought up upon motion. Mills vs. Shult, 2 E. D. Smith, 139; Nye vs. Ayres, 1 E. D. Smith, 532; Partridge vs. Thayer, 2 Sandf., 227; 1 C. R., 85.

Errors committed at the trial, where not objected to at the time, so as to give opportunity for the defect to be cured, or where not stated on the notice as grounds of appeal, will not be considered on the hear ing, or form ground for reversal. Stern vs. Drinker, 2 E. D. Smith, 401; Lee vs. Schmidt, 1 Hilt., 537; 6 Abb., 183; Hunt vs. Hoboken Land and Improvement Company, 1 Hilt., 161; Heim vs. Wolf, 1 E. D. Smith, 70; Frost vs. Hanford, 1 E. D. Smith, 540; Ranney vs. Gwynne, 3 E. D. Smith, 59; Rouillier vs. Wermicke, 3 E. D. Smith, 310; Donohue vs. Henry, 4 E. D. Smith, 162; Duffy vs. Thompson, 4 E. D. Smith, 178; Fenn vs. Timpson, 4 E. D. Smith, 276; Avogadro vs. Bull, 4 E. D. Smith, 384; Dennistoun vs. McAllister, 4 E. D. Smith, 729; Tibbets vs Percy, 24 Barb., 39; Hall vs. McKechnie, 22 Barb., 244; Smith vs. Hill, 22 Barb., 656; Austin vs. Burns, 16 Barb., 643; McEachron vs. Randles, 34 Barb., 301. See also, as to presumption, in relation to the mode of taking an objection, when not clearly apparent, Bellows vs. Sackett, 15 Barb., 96.

See generally, as to the principle of disregarding technical or immaterial errors, where substantial justice has been done on the hearing below, Burtnett vs. Gwynne, 2 Abb., 79; Harper vs. Leal, 10 How., 276; Spencer vs. Saratoga and Washington Railroad Company, 12 Barb., 382; Buck vs. Waterbury, 13 Barb., 116; Doolittle vs. Eddy, 7 Barb., 74; Cole vs. Stevens, 9 Barb., 676; 6 How., 424; Bort vs. Smith, 5 Barb., 283; Dunkle vs. Kocker, 11 Barb., 387; McEachron vs. Randles, 34 Barb., 301.

Although the general rule requires that every reasonable intendment should be made in favor of the judgment of the court below, yet, where the return does not show evidence sufficient to sustain the judgment, the omission of the justice to certify that it contains all the evidence had before him, will not warrant the presumption that there was other and sufficient testimony given, to warrant the judgment. Calligan vs. Mix, 12 How., 495. N. B.-Word "not" omitted in head-note.

(b.) ERRORS REViewable.

Under section 366, as above referred, the appellate court may, on the appeal, reverse the judgment, for errors of law or of fact apparent on the return. The review in respect of extraneous errors of the latter description will be considered below.

It may be convenient to notice, shortly, some of the recent decisions as to those two classes of errors, without, of course, professing to go into an exhaustive discussion upon the subject.

(c.) ERRORS OF Law.

The refusal of a nonsuit, where proper to be granted, is, of course, error of law, for which a reversal will be awarded. For vs. Decker, 3 E. D. Smith, 150; Fales vs. McKeon, 2 Hilt., 53. So likewise, where error has been committed in the justice's charge. Halloran vs. New York and Erie Railroad Company, 2 E. D. Smith, 257 (258).

So also, as to the improper admission or rejection of material evidence. Belden vs. Nicolay, 4 E. D. Smith, 14; McAllister vs. Sexton, 4 E. D. Smith, 41; Main vs. Eagle, 1 E. D. Smith, 619; Hahn vs. Van Doren, 1 E. D. Smith, 411; Raymond vs. Richardson, 4 E. D. Smith, 171; Warren vs. Van Pelt, 4 E. D. Smith, 202; Healey vs. Kinsley, ± E. D. Smith, 286; Stewart vs. Bock, 1 Hilt., 122; Wiggins vs. Wallace, 19 Barb., 338; Rivara vs. Ghio, 3 E. D. Smith, 264.

But the admission of irrelevant testimony may be disregarded, where the decision is correct. Martin vs. Garrett, 4 E. D. Smith, 346; Cas tree vs. Gavelle, 4 E. D. Smith, 425; Moore vs. Somerindyke, 1 Hilt., 199. Nor will the exercise of discretion, as to the admission of further witnesses, after the party has rested his case, be made the subject of review. Silverman vs. Forman, 3 E. D. Smith, 322; Reed vs. Barber, 3 C. R., 160; Harpell vs. Curtis 1 E. D. Smith, 78; Heidenheimer vs. Wilson, 31 Barb., 636.

Nor will such exercise be interfered with, in other matters, where no positive error of law has been committed, or where no prejudice has resulted to the parties, as in the granting of an amendment in the process. Cooper vs. Kinney, 2 Hilt., 12; 6 Abb., 380; Orser vs. Grossman, 4 E. D. Smith, 443; 11 How., 520.

The denial of an adjournment, during the progress of the trial, will not be ground for reversal. Matthews vs. Festel, 2 E. D. Smith, 90; Giberton vs. Ginocchio, 1 Hilt., 218; Ranney vs. Gwynne, 3 E. D. Smith, 59; Story vs. Bishop, 4 E. D. Smith, 423. Or, such denial, when it is applied for on motion, Irroy vs. Nathan, 4 E. D. Smith, 68. And, generally, mere matters of practice in the court below will not be

reviewed on appeal. Mitchell vs. Menkle, 1 Hilt., 142; Brown vs. Jones, 1 Hilt., 204; 3 Abb., 80.

When the pleadings are insufficient, or do not conform to the proof, it is the duty of the justice to grant an amendment, and the refusal may be error. Turck vs. Richmond, 13 Barb., 533; Doughty vs. Crozier, 1 Hilt., 411; Smith vs. Mitten, 13 How., 325. But, when a motion was made upon the trial, to amend by adding a new defence, a denial of it was sustained. Tattershall vs. Hass, 1 Hilt., 56.

In Lowber vs. Childs, 2 E. D. Smith, 577; 1 Abb., 415, it was held that the provisions of the Code as to parties, extended to these cases, and that a refusal to bring in a necessary party was error. See also Agreda vs. Faulberg, 3 E. D. Smith, 178. See, per contra, Webster vs. Hopkins, 11 How., 140; and Gates vs. Ward, 17 Barb., 424, there referred to.

Proceeding with the action, where there has been a failure to acquire jurisdiction, will of course be error. As, where a long summons has been issued against a non-resident, Robinson vs. West, 11 Barb., 307; Willins vs. Wheeler, 28 Barb., 669; 17 How., 93; 8 Abb., 116. So also, as regards an attachment irregularly granted, Churchill vs. Marsh, 4 E. D. Smith, 369; 2 Abb., 219; McCabe vs. Doe, 2 E. D. Smith, 64; Osterstock vs. Lent, 1 Hilt., 158; Marsh vs. Canty, 14 Abb., 237.

Or where a short summons has been issued, without proper proof or security. Davidson vs. Hutchins, 1 Hil., 123; Sperry vs. Major, 1 E. D. Smith, 361; Allen vs. Stone, 9 Barb., 60. See also, as to the improper issue of an ordinary summons, Cooper vs. Ball, 14 How., 295; or of a long summons, in New York, at the suit of a nonresident, without proper security, Palmer vs. Moeller, 2 Hilt., 421; 19 How., 322; 9 Abb., 20, note.

But this class of objections, as to the irregular issue or service of process, are all capable of waiver, where the defendant has appeared and pleaded to the merits, without raising the point, by preliminary objection, or plea in abatement. See Bray vs. Andreas, 1 E. D. Smith, 387; Sperry vs. Major, 1 E. D. Smith, 361; Montieth vs. Cash, 1 E. D. Smith, 412; 10 L. O., 348; Cushingham vs. Phillips, 1 E. D. Smith, 416; Andrews vs. Thorp, 1 E. D. Smith, 615; Miln vs. Russell, 3 E. D. Smith, 303; Ingersoll vs. Gillies, 3 E. D. Smith, 119; Agreda vs. Faulberg, 3 E. D. Smith, 178; Robinson vs. West, 1 Sandf., 19; Aldrich vs. Ketchum, 3 E. D. Smith, 577; Dempsey vs. Paige, 4 E. D. Smith, 218; Bandman vs. Gamble, 4 E. D. Smith, 463; Gossling vs. Broach, 1 Hilt., 49; Brown vs. Jones, 1 Hilt., 204; 3 Abb., 80. See, however, Allen vs. Stone, 9 Barb., 60.

Where an action had been brought in one of the New York District Courts, on a judgment, without leave of the court, the judgment

was reversed. See Mills vs. Winslow, 2 E. D. Smith, 18; 3 C. R., 44. Judgment will also be void, if neither party to the suit resides within the jurisdiction. Snyder vs. Goodrich, 2 E. D. Smith, 84. But this objection would seem to be capable of waiver. See Fairbanks vs. Corlies, 3 E. D. Smith, 582; 1 Abb., 150.

A reversal will be proper, where the suit has been commenced, for an amount exceeding that for which the justice has jurisdiction. Bellinger vs. Ford, 14 Barb., 250. Or, where the judgment has been taken by default, on an erroneous return as to service of process, none having in fact been made. Fitch vs. Devlin, 15 Barb., 47.

So also, where the justice has proceeded, after it was apparent that the title to land necessarily came into question. Main vs. Cooper, 26 Barb., 468. See, however, as to cases where title is not set up or controverted on the pleadings, Adams vs. Rivers, 11 Barb., 390; Bellows vs. Sackett, 15 Barb., 96; Browne vs. Scofield, 8 Barb., 239.

Where, on its appearing that the justice is disqualified to try it, he refused to dismiss the action, the judgment was reversed. Carrington vs. Andrews, 12 Abb., 348. So also, where the trial had taken place before the justice of another district, without his authority to hear the case appearing upon the return. Reed vs. Warth, 2 Hilt., 281.

On the defendant's failure to appear, it will be error for a judge in the country districts, as formerly in New York, to give judgment for the plaintiff, unless he proves his case by sufficient evidence. Muscott vs. Miller, 1 C. R., 53; Perkins vs. Stebbins, 29 Barb., 523; Alburtis 78. McCready, 2 E. D. Smith, 39; Howard vs. Brown, 2 E. D. Smith, 247; Jones vs. Pridham, 3 E. D. Smith, 155; McCollum vs. McClare, I Hilt., 140; 3 Abb., 106. So also, where, on a special defence being overruled at the trial, the court goes on and gives judgment on the pleadings, without proof of the plaintiff's case. Raymond vs. Traffarn, 12 Abb., 52. In the New York district, however, the plaintiff may now take judgment by default, on his complaint, if verified, as in the higher courts. See also, as to the effect of a special plea, by way of admission of the plaintiff's case, where no evidence is offered on either side. Gregory vs. Trainer, 4 E. D. Smith, 58.

If there has been in any manner a mistrial of the cause, on points affecting the jurisdiction, or working injury to either party, it will be ground for reversal.

As, where a jury trial, when duly demanded, has been refused. Meech vs. Brown, 1 Hilt., 257; 4 Abb., 19; Mead vs. Darragh, 1 Hilt., 395. Or, where a challenge for principal cause has been improperly overruled. Hathaway vs. Helmer, 25 Barb., 29.

Or, where the case has been improperly adjourned, or has fallen through, by the non-attendance of the parties on an adjourned hearing.

Peck vs. Andrews, 32 Barb., 445; Aberhall vs. Roach, 3 E. D. Smith, 345; 11 How., 95; The Mayor of New York vs. Husson, 2 Hilt., 7; Lynsky vs. Prendergast, 2 E. D. Smith, 43; Redfield vs. Florence, 2 E. D. Smith, 339; Hogan vs. Baker, 2 E. D. Smith, 22; Wight vs. McClave, 3 E. D. Smith, 316; Norris vs. Bleakley, 1 Hilt., 90; 3 Abb., 107. See, as to the right to refuse an adjournment when applied for, Matthews vs. Festel, 2 E. D. Smith, 90; Pollock vs. Ehle, 2 E. D. Smith, 541; Story vs. Bishop, 4 E. D. Smith, 423.

So likewise, where, after the defendant had made inquiry, and had been told there was no such case, and allowed to leave the court, the justice subsequently proceeded. Murling vs. Grote, 1 Hilt., 116; 3 Abb., 109. Or, where the case had been placed on the calendar on the wrong day. McCollum vs. McClare, 1 Hilt., 140; 3 Abb., 106; Kelly vs. Brower, 1 Hilt., 514.

Or, where the justice decided the cause, before the summing up of counsel was closed. Prentiss vs. Sprague, 1 Hilt., 428. See also, as to restricting a party in his defence, Allen vs. Stone, 9 Barb., 60.

Where the return is wholly insufficient, it will be error to render judgment upon it. Spring vs. Baker, 1 Hilt., 526; Heidenheimer vs. Lyon, 3 E. D. Smith, 54; Cabre vs. Sturges, 1 Hilt., 160. So also, where the return, as made, does not show an essential prerequisite, as the giving of a bond, in a suit on a lost note. Desmond vs. Rice, 1 Hilt., 530. But, where the question arose, as to whether the plaintiff was or was not absent on the return of the verdict, it was held that, to make such absence available as ground of error, it must be affirmatively stated on the return. McEachron vs. Randles, 34 Barb., 301. See, however, Douglass vs. Blackman, 14 Barb., 381.

As to the presumption in favor of the regularity of the proceedings below, vide Beattie vs. Qua, 15 Barb., 132; The Mayor of New York vs. Hyatt, 3 E. D. Smith, 156.

In Montfort vs. Hughes, 3 E. D. Smith, 591, it was held to be error to receive a plea to the merits, after an inquest against the defendant had actually been commenced; and the judgment was reversed for mistrial.

A judgment, rendered after the expiration of the time limited by statute, will be erroneous, and cannot stand. Berrian vs. Olmstead, 4 E. D. Smith, 279; Seaman vs. Ward, 1 Hilt., 52; Wiseman vs. Panama Railroad Company, 1 Hilt., 300; Kane vs. Dulex, 3 E. D. Smith, 127. But where, after trial, the cause had been adjourned over by consent for argument, it was held that the statutory time ran, from the conclusion of such argument, and not from the day of actual trial. Heidenheimer vs. Wilson, 31 Barb., 636.

The awarding of final judgment, on the decision of a demurrer,