not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the alleged error in fact on affidavits, and may in its discretion inquire into and determine the same upon examination of the witnesses.

If the defendant failed to appear before the justice, and it is shown by the affidavits served, by the appellant or otherwise, that manifest injustice has been done, and he satisfactorily excuses his default, the court may, in its discretion, set aside or suspend judgment, and order a new trial before the same or any other justice in the same county, at such time and place, and on such terms as the court may deem proper.

Where a new trial shall be ordered before a justice, the parties must appear before him according to the order of the court, and the same proceedings must thereupon be had in the action as on the return of a summons personally served. If the appeal shall be from a judgment in which a new trial may be had as in this chapter provided, the court shall proceed to the hearing of the cause, if the issue joined before the justice was an issue of law, or to the trial thereof by jury, if such issue was upon a question of

fact.

1. If the issue joined before the justice was an issue of law, the court shall render judgment thereon according to the law of the case; and if such judgment be against the pleadings of either party, an amendment of such pleading may be allowed on the same terms and in like case as pleadings in actions in the supreme court, and the court may thereupon require the opposite party to answer such amended pleading, or join issue thereon, as the case may require, summarily.

2. If, upon an appeal in an issue of law, the court should adjudge the pleading complained of to be valid, it shall, in like manner, require the opposite party, summarily to answer such pleading, or join issue thereon, as the case may require.

3. Upon an issue of fact being so joined, the court shall proceed to hear the same tried by a jury in the same manner as issues joined in the supreme court.

4. Every issue of fact so joined, or brought upon an appeal, shall be tried in the same manner as in actions commenced in the supreme court.

5. The court shall have the same power over its own determi nations, and the verdict of the jury, and shall render judgment thereon in the same manner as the supreme court, in actions pend

ing therein; and may allow either party to amend his pleadings upon such terms as shall be just, in cases where a new trial may be had, as in this chapter provided; and in any such appeal on which a new trial is to be had, either party may, at any time before trial, serve upon the opposite party an offer, in writing, to allow judgment to be taken against him for the sum or property, or to the effect in such offer specified, and with or without costs, as said offer shall specify. If the party receiving such offer accept the same, and give notice thereof in writing within ten days, he may file the return and offer, with an affidavit of service of notice of acceptance thereof, and the clerk shall thereupon enter judgment according to said offer. And if the party making such offer shall have given an undertaking upon the appeal, the parties executing such undertaking shall be liable thereon for the payment of the judgment entered by virtue of said offer. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence. And if the party to whom such offer is made fail to obtain a judgment more favorable to him than that specified in said offer, then he shall not recover costs, but must pay the other party's costs from the date of the service

of the offer.

6. Either party may move for a new trial, in said court, on a case or exception, or otherwise, and such motion may be made before or after judgment has been entered; and the provisions of this act in relation to the proceedings on receiving the verdict of a jury, exceptions to the decisions of the court, making and settling case and exceptions, motions for new trials, and making up the judgment-roll in the supreme court, are hereby made applicable to all appeals brought up for trial as in this chapter provided.

a. Exception not necessary.—In a justice's court no exception is necessary to secure the right to appeal, objection is sufficient (Meech v. Brown, 4 Abb. 19). And where evidence offered on a trial before a justice is objected to and excluded, and neither the grounds of the objection, nor the object of the proof is stated, and the court on appeal can see that a good objection might have been taken, it will presume that the proper objection was taken and the decision below made upon that ground (Bellows v. Sackett, 15 Barb, 96). b. What questions are reviewable on appeal.-The appellate court will review only the defects stated in the notice of appeal (see ante, in note to § 354), and is restricted to the issues framed in the court below (Ross v. Hamilton, 3 Barb. 609); and, as a general rule, the court, upon appeals from inferior courts, disregards all objections not taken at the trial (Desmond v. Rice, 1 Hilton, 531; Willard v. Bridge, 4 Barb. 361; Austin v. Burns, 16 id. 643; Westbrook v. Douglass, 21 id. 602; Rice v. Hollenbeck, 19 id. 664; Smith v. Hill, 22 id. 656). But where the plaintiff, without giving the bond re

quired by the revised statutes, recovered judgment on two negotiable notes which had been lost, and no objection to his recovery on that ground was made at the trial,-held, nevertheless, that the giving a bond was a prerequisite to any recovery, and the return not showing affirmatively that a bond was given, the judgment was reversed (id.) And the common pleas will review the decision of a justice of a district court, denying a jury trial, although no exception to the decision was taken (Meech v. Brown, 1 Hilton, 257), and the appellant may show the court below had not jurisdiction, although the point was not raised below (Willins v. Wheeler, 28 Barb. 669). But an appellant cannot object for the first time, on appeal, that a question put to a witness was leading (Pollock v. Hoag, 4 E. D. Smith, 473; Pearson v. Fiske, 7 Abb. 419); or, that when the alleged liability arose, she was a feme covert (Castree v. Gavelle, 4 E. D. Smith, 425); or, that there was no formal proof of the issuing of letters of administration to the plaintiff suing as an administrator (Donohue v. Henry, 4 E. D. Smith, 162); that certain evidence was incompetent or inadmissible (Rouillier v. Wernicki, 3 id. 310: Ranney v. Gwynne, 3 id. 59); that there was a misjoinder of parties plaintiff (Tibbitts v. Percy, 24 Barb. 39); or a nonjoinder of defendants (Avogardo v. Bull, 4 E. D. Smith, 384); or, that after the jury was sworn, the justice permitted some of them to withdraw and others to be substituted (Cook v. Ritter, 4 E. D. Smith, 253); or, to the competency of a witness (Fenn v. Timpson, id. 276). And generally, a party cannot, on appeal, insist on an objection which might have been and was not taken in the court below (Duffy v. Thompson, 4 E. D. Smith, 178), which, if taken at the trial, might have been obviated by the respondent (Hunt v. Hoboken Land Co. 1 Hilton, 161; Lee v. Schmidt, id. 537). Thus, the appellant cannot insist for the first time, on an appeal from judgment, that a question to a witness was improper because he was not shown to be an expert (Hunt v. Hoboken Land Co. 1 Hilton, 161). Nor, in an action by several plaintiffs as partners, for goods sold and delivered, can the defendant on the appeal avail himself of the objection that the plaintiffs omitted to prove their partnership (Whitlock v. Bueno, 1 Hilton, 72). On the appeal the appellant cannot object to the form of the complaint (Neff v. Clute, 12 Barb. 466). The appellate court may presume a party has waived any defense, he may waive, where the point is not taken either by the pleadings or at the trial (Gastree v. Gavelle, 4 E. D. Smith, 425). And where such point is not specified in the notice of appeal (Duffy v. Thompson, id. 178). The appellant may waive the defense of coverture (Castree v. Garelle, 4 E. D. Smith, 425), or that plaintiff suing as administrator has not proved any grant of letters to him (Donohue v. Henry, 4 E. D. Smith, 162); or that plaintiff suing as assignee has not proved the assignment to him (Austin v. Burns, 16 Barb. 643); that an instrument was admitted without calling the attesting witness (Ranney v. Guinn, 3 E. D. Smith, 59); and an appellant, by not raising the question by his pleading, waives an objection that the cause of action in the summons and complaint vary from each other (Bandman v. Gamble, 4 E. D. Smith, 463; Andrews v. Thorp, 1 id. 615; Miln v. Russell, 3 id. 303, and note; Gossling v. Broach, 1 Hilton, 49; Brown v. Jones, 3 Abb. 80; see, however, Sweet V. Tuttle, 14 N. Y. 465); that defendant was improperly sued by a short summons (Ingersoll v. Gillies, 3 E. D. Smith, 119), or by warrant (Dempsey v. Paige, 4 id. 218); that there is a variance between the summons served and that returned (Avogardo v. Bull, id. 384); or a nonjoinder of defendants (id.), or a misjoinder of plaintiffs (id.; Tibbitts v. Percy, 24 Barb. 39), or a defect in the process (Aldrich v. Ketcham, 3 E. D. Smith, 577).

a. The court will not review, on appeal, the propriety of an amendment granted on the appellant's motion (Orsser v. Grossman, 4 E. D. Smith, 443). A decision on the relative credibility of two opposing witnesses (McLaughlin v. Barnard, 2 E. D. Smith, 372; Heim v. Wolf, 1 id. 72). Or on the competency of a witness to testify as an expert (Wiggins v. Wallace, 19 Barb. 338). Or a question on the form of the complaint in the court below (Neff v. Clute, 12 Barb. 466; see, Cushinham v. Phillips, 1 E. D. Smith, 416). Or a decision

on a motion to dismiss the summons for variance between that and the complaint (Brown v. Jones, 3 Abb. 80).

a. The decisions of the marine court upon questions respecting its practice, and not affecting the merits of the action, are not the subject of review in the common pleas (Brown v. Jones, 1 Hilton, 204). Nor are matters resting in the discretion of the court below reviewable, unless they affect the substantial rights of the parties, although returned by the justice as part of the proceedings in the cause (Mitchell v. Menkle, 1 Hilton, 142).

b. The refusal of a justice to allow an amendment of a pleading, if in any case a ground of appeal, can only be so when no injustice would result from granting the application (Tattersall v. Hass, 1 Hilton, 56; Waldheim v. Sichel, 1 Hilton, 45).

c. Reversal for want of evidence to support judgment.-The appellate court will order a reversal where there is no evidence to support the judgment whether defendant appeared on the trial or not, in actions in which the plaintiff has to prove his case (Moore v. Noble, 53 Barb. 425; Kasson v. Mills, 8 How. 377; Carter v. Dallimore, 2 Sand. 222; Alburtus v. McCready, 2 E. D. Smith, 40; Wiley v. Slater, 22 Barb. 506; Calligan v. Mix, 13 How. 96; 12 id. 495; Jones v. Pridham, 3 E. D. Smith, 155; Fox v. Decker, id. 150; Ely v. O'Leary, 2 id. 355; Hunt v. Westervelt, 4 id. 225; Storp v. Harbutt, id. 464). But where the defendant does not appear in the court below, the court will not be astute to discover defects in evidence, where it appears no injustice has been done (Mayor of N. Y. v. Hyatt, 3 E. D. Smith, 156).

d. Reversal for admitting illegal testimony.-The court will reverse a judgment for the cause that illegal testimony influencing the decision has been admitted, except in a very clear case that no injustice has been occasioned (Main v. Eagle, 1 E. D. Smith, 619). Where evidence, erroneously admitted, tends directly to establish the plaintiff's case, although the issue might have been determined in the same way upon the other testimony, the error is not a technical one, but affects the merits, and cannot be disregarded in reviewing the judgment (Hahn v. Van Doren, 1 E. D. Smith, 411). But for admitting, or rejecting, testimony which the court can see could not affect the result, the court will not reverse (Harper v. Leal, 10 How. 276; Persee v. Cole, 1 Cal. R. 369); nor will it reverse where the return shows a special finding of fact upon sufficient evidence, exclusive of testimony objected to and improperly received (Martin v. Garrett, 4 E. D. Smith, 346). Although, on appeal, the court may be of opinion that evidence which has been improperly rejected in the court below would not have changed the verdict of the jury, yet, if it might have influenced their minds in considering the facts, and was competent, the court is not at liberty to overlook the erroneous rejection, and affirm the judgment (McAllister v. Sexton, 4 E. D. Smith, 41). And where improper testimony is received in the court below, which not only may have influenced the judgment, but which the return in terms states was taken into consideration in finding the facts, the appellate court cannot disregard the error, although there appears to be evidence in the cause which would have been sufficient to sustain the same finding, had the illegal testimony been rejected (Belden v. Nicolay, 4 E. D. Smith, 14).

e. Reversal in other cases.-A judgment will be reversed for an error in excluding proper and material evidence (Raymond v. Richardson, 4 E. D. Smith, 171); or where the damages are obviously excessive (Althouse v. Rice, id. 347); or for improperly nonsuiting a plaintiff (Gregory v. Trainor, 4 E. D. Smith, 58; see, however, Haulenbeck v. Gillies, 7 Abb. 421); or for not nonsuiting a plaintiff suing by a short summons, without giving security (Allen v. Stone, 9 Barb. 60); or for the justice omitting to wait an hour after the time when the summons was returnable, before proceeding in the cause (id.; see Beach v. McCann, 1 Hilton, 256); or when the judgment is against the clear weight of evidence (Heim v. Wolf, 1 E. D. Smith, 72; Searles v. Cronk, 38 How. 320). And, where the testimony is direct, unequivocal, and consistent, and the witnesses stand unimpeached and uncontradicted, the

court below cannot unreasonably discredit them; and if it does, the judgment will be reversed for that cause (Jacks v. Darrin, 3 E. D. Smith, 558; Baker v. Bonesteel, 2 Hilton, 397); or the judgment will be treated as founded on some erroneous view of the law applicable to it, and reversed on that ground (Goldsmith v. Obermeier, 3 E. D. Smith, 121).

a. When the judgment will not be reversed.—A judgment will not be disturbed on the ground of the reception of immaterial testimony, where the ground of the alleged immateriality is that the fact intended to be proved thereby is already sufficiently established by other evidence (Crane v. Hardman, 4 E. D. Smith, 448); nor for permitting an improper answer to be given by a witness, there being enough to sustain the judgment without such answer (Buck v. Waterbury, 13 Barb. 116); nor on the ground that it should be more favorable than it is to the party who has not appealed (Robins v. Codman, 4 E. D. Smith, 316; Glassner v. Wheaton, 2 id. 352); nor for a variance between the pleading and proof where no injustice has been done (Briggs v. Evans, 1 id. 196); nor for disregarding testimony; for it is competent for a justice to entirely disregard the testimony of a witness, if his manner of testifying, and other circumstances developed in the case, render him, in the opinion of the court below, unworthy of belief (Donohue v. Henry, 4 E. D. Smith, 162); nor where there is a conflict of testimony, except in cases of evident mistake, prejudice, passion, or partiality (Dempsey v. Paige, 4 E. D. Smith, 218; Pearson v. Fiske, 7 Abb. 419; Galoupeau v. Ketchum, 3 E. D. Smith, 175; Wilson v. Cook, id. 252; Easton v. Smith, 1 id. 319; Kasson v. Mills, 8 How. 367; Carter v. Dallimore, 2 Sand. 222; Bennett v. Scutt, 18 Barb. 347; Mendell v. French, 2 Hilton, 178; Pearson v. Fiske, id. 146; Justison v. Crawford, 25 How. 465); although the appellate court may consider that a different finding would have been warranted (Pozzoni v. Henderson, 2 E. D. Smith, 146; Biglow v. Sanders, 22 Barb. 147; Wiley v. Slater, id. 506); nor for admitting irrelevant testimony (Spencer v. Saratoga R. R. Co. 12 Barb. 382; Harper v. Leal, 10 How. 276; Persee v. Cole, 1 Cal. R. 369). Nor, is it ground for reversal, that there is an error to the prejudice of a party who has not appealed (Robbins v. Codman, 4 E. D. Smith, 316; Glassner v. Wheaton, 2 id. 352; Orser v. Grossman, 4 id. 443); or that additional evidence was admitted after the parties had once rested, but before the case had been finally submitted, and while the parties and their witnesses were all present (Harpel v. Curtis, 1 E. D. Smith, 78; Lambert v. Seely, 2 Hilton, 429); or that the justice refused to allow additional evidence to be given after a motion for a nonsuit (Reed v. Barber, 3 Code Rep. 160); or refused a motion to adjourn (Irroy v. Nathan, 4 E. D. Smith, 68). And the mere fact that it was proved that a former trial had been had between the same parties, when the return does not show how such trial terminated, will not warrant the reversal of a judgment for a plaintiff upon an issue, on a plea of "former judgment" (Morrill v. Whitehead, id. 239).

b. A judgment will not be reversed because of the admission of immaterial evidence at the trial, when it can be seen that no harm resulted from the admission (Moore v. Somerindyke, 1 Hilton, 199); nor for a defect in the complaint, although such as would have been good ground of demurrer, when such defects were supplied by the evidence, and no harm has been occasioned by such defect (Mayor of N. Y. v. Green, 1 Hilton, 393); nor where the cause was tried upon the assumption of the existence of a fact which was not proven, but which was incumbent on the plaintiff to have shown, and might have been established, if objection had been taken at the trial (Lee v. Schmidt, 1 Hilton, 537); nor for defect of proof, when, if objection had been taken at the trial, it could or might have been obviated (id.; see Paige v. Fazackery, 36 Barb. 392).

c. The court will not, on appeal, interfere with the finding of a justice, unless for such an obvious disregard of the weight of evidence, as to create a conviction that it must have proceeded from passion, prejudice, corruption, or palpable mistake (Tracy v. Hartman, 1 Hilton, 350). Where the justice re