Wolcott v. Meech. credit on his account should have been $450, instead of $300. The decree should be amended, so as to reduce the amount of the indebtedness of the said Alva Clark from $737.43 to $587.43, as of the date of the charge against him, with interest, and in all other respects should be affirmed, with the costs of the appeal, to be paid out of the fund in the hands of the receiver. Decree modified. Costs to be paid out of the fund. [MONROE GENERAL TERM, September 1, 1856. T. R. Strong, Welles and Smith, Justices.] WOLCOTT vs. MEECH. Where it was alleged in the complaint that the work and labor for which the action was brought was performed by Jones Wolcott, and the testimony showed that his real name was Edwin Jones Wolcott; Held, that this was an immaterial variance, and was properly disregarded by the referee. A PPEAL by the defendant from a judgment entered at a special term, upon the report of a referee. The action was brought by the plaintiff, John Wolcott, as assignee of "Jones Wolcott," to recover for work and labor performed by the latter for the defendant, in running a canal boat for him, during the season of 1848. The bill of particulars furnished by the plaintiff was for the "labor and services of E. Jones Wolcott in running canal boat for defendant for 7 months and 15 days, at $126 per month." The referee reported in favor of the the amount claimed. George B. Bradley, for the plaintiff. Harris & Courtney, for the defendant. LAW SCHOOL LIBRARY. By the Court, E. DARWIN SMITH, J. In the complaint it is claimed that the work and labor for which this action was brought was performed by Jones Wolcott. The testimony in the case shows that his real name was Edwin Jones Wolcott. Wolcott v. Meech. It was objected when the witness was called, and on the motion for a nonsuit, that this was a fatal variance, and that the contract set out in the complaint was not sustained by the proof. The referee disregarded the variance, and I think very properly. Among the best, if not the best provision in the code, is section 169, which is as follows: "No variance between the allegations in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." Immaterial variances are to be disregarded on the trial, or the court may then amend, or whenever the question is presented. (Secs. 170, 173 and 176.) These are most beneficent provisions, and should be liberally construed and carried out. They were designed to correct a great evil and wrong in the old system, the turning of a party out of court, as very frequently happened, upon slight and non-essential mistakes in pleading, or variances between the pleadings and the proof. The defendant in this case could not have been misled by the mistake in the name of the witness; for, in the bill of particulars given in the cause, the labor and services are stated to have been rendered by E. Jones Wolcott, and there is no pretense in the case of any surprise on this point. On the merits there was conflicting evidence. The witness, Jones Wolcott, and the defendant, contradict each other in many points, positively. But this was a question for the referee, and we should not disturb his finding on such a point, more than we would the finding of a jury. But I think he decided it right. There was considerable corroborative evidence to sustain Wolcott. He had, confessedly, worked for the line in which the defendant was a large proprietor, and he had not been paid. He states many facts and particulars which must be true, and which tend to confirm his testimony; while the testimony of the defendant is chiefly in the non mi ricordo vein. I think substantial justice has been done by the referee, and a new trial should be denied. Judgment affirmed. [MONROE GENERAL TERM, September 1, 1856. T. R. Strong, Welles and Smith, Justices.] THE CLYDE AND ROSE PLANK ROAD COMPANY VS. PARKER. Where an action was originally commenced in a justice's court, and the defend- If the plaintiff, on recovering at the circuit, in an action thus commenced, makes Although consent cannot confer jurisdiction, yet where the court has jurisdiction A PPEAL from an order of the special term granting a new trial. See 12 Howard's Pr. Rep. 371, where the facts are fully stated. C. D. Lawton, for the plaintiffs. J. Welling, for the defendant. By the Court, E. DARWIN SMITH, J. The county court, as organized under the constitution of 1846, is confessedly a court of special and limited jurisdiction. (Frees v. Ford, 2 Selden, 176. Kundolf v. Thalheimer, 2 Kernan, 593.) The jurisdiction of such courts must always appear upon the record. 22 323 75h 297 Clyde and Rose Plank Road Co. v. Parker. (Idem. Werner v. Bank of North America, 4 Dallas, 8. Bloom v. Burdick, 1 Hill, 139. 17 Wend. 483. 21 id. 40.) The rule thus stated has relation chiefly to the record of the inferior court when brought before a superior court for review, or when questioned in some collateral proceeding. The question of jurisdiction may always be raised in the inferior court itself, and whenever and wherever elsewhere its judgment is sought to be enforced. But in this case there is no judgment, and no final record of the proceedings of the county court has been made; and the case in this court is in the precise shape, and is to be considered and decided in respect to the question of jurisdiction, as though it were before the county court in fact, and we were sitting for its decision in the county court. The learned judge who tried this cause at the circuit treated it there precisely as he would have done in this court upon writ of error or appeal. He applied the rule that the jurisdiction of all inferior courts must appear upon the record; holding that the pleadings must show the jurisdiction upon their face, and that the omission in that particular could not be supplied or amended. It seems to me that the learned judge was mistaken in this view of the case, and in several of his rulings relating to this point of jurisdiction. The counsel for the plaintiff stated, in his opening, that the action was originally commenced in a justice's court; that the defendants put in a plea of title before the justice, and gave the undertaking required by section 56 of the code. That thereupon the action was discontinued before the justice, and this action, for the same cause of action, was in due time commenced in the county court, pursuant to the statute. From this statement it clearly appeared that the cause of action was one of which the county court had jurisdiction, both of the person and the subject matter. The defendant had appeared in the action and had put in an answer denying the material matters stated in the complaint. As the subject matter of the action was or might be within the jurisdiction of the county court, it seems to me that the appearance of the defendant, and answering without objection as to the question of jurisdiction, should be deemed, in that stage of Clyde and Rose Plank Road Co. v. Parker. the suit, a waiver of the point that the jurisdiction should appear in the summons and complaint, and an admission that the case was within the jurisdiction of the court. Consent, of course, could not confer jurisdiction; but where the court has jurisdiction of the subject matter, consent could dispense with recitals or statements in the pleadings in matters of mere form. This was a case confessedly of jurisdiction in fact, and the only difficulty at the circuit was one of mere form. For the purpose of the trial, I think that the question of form should have been deemed waived, or it should be held that after issue such a question should not be entertained at the trial. But the rule that the jurisdiction of an inferior court must appear upon the record, does not necessarily require that it be set out in the complaint and summons in a case like this. This suit, for the purpose of jurisdiction, should be deemed to have been commenced in the justice's court. The record of the case, when made up, should contain the preliminary proceedings conferring jurisdiction upon the county court. This would be proper at all times, and necessary unless the summons and complaint contained recitals of those facts. The plaintiff had the right to file with the clerk of the county the summons of the justice, the pleadings before him, and the defendants' undertaking, and have them compose part of the judgment roll. They were part of the papers "necessarily affecting the judgment." (See 281 of the Code.) If the plaintiff had recovered at the trial, and had made up a judgment roll containing all the papers and proceedings from the commencement of the suit before the justice to the final judgment in the county court, as he was entitled to do under the above mentioned section (281) of the code, no court of review could say that the record did not show the jurisdiction. of the county court upon its face. If this is so, it was not essential that the pleading should contain recitals or averments conferring or showing jurisdiction. The action is to be commenced by "summons and complaint in an action in the county court for the same cause of action in which the plaintiff declared before the justice." (Code, 56, 60.) "And the answer of |