edge 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, or otherwise, that manifest injustice has been done, and the defendant satisfactorily excuses his default, the court may in its discretion, set aside or suspend the judgment, and order a new trial before the same. or any other justice, at such time and place and on such terms as the court may deem proper. The parties must appear before the justice 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.

a. Before amendment the section ended where the asterisk is placed.

b. The section before amendment was identical with section 317 of the code of 1848, upon which in a case where the summons claimed only $50, and the plaintiff in the absence of the defendant took judgment for $91, on appeal from such judgment it was alleged that only $50 was claimed by the inadvertence of the clerk of the court, and that the court under this section would rectify the error: the court said the difficulty is that we cannot know what are the merits of the case beyond the $50. The defendants had no opportunity to be heard in their defence as to the surplus beyond that sum. We can see there was no defence to the extent of $50, but beyond that we have no information. The appeal was allowed. Partridge v. Thayer, 2 Sand., 227.

c. The office of an appeal from a judgment rendered by a justice, is to try the cause upon the merits; and the appellate court is restricted to the issue or issues of law framed in the court below and appearing upon the record. Ross v. Hamilton, 3 Barb. 609.

d. This section "was evidently intended to give the court power to review the proceedings of the court below both as to law and to fact. But in the exercise of this power we are not to regard technical errors or defects, nor would it be proper in this court to interfere with the decision of the court below upon questions of fact when the testimony was in any respect of a doubtful character, or such as to afford any grounds for the decision to which the court below arrives. I know of no better rule to adopt in regard to a review upon the facts than that which exists as to a case tried before a jury in this court, viz. not to interfere with the verdict upon the facts unless the decision is against the clear weight of evidence." Ingraham, First J. Heim v. Wolf, 1 Smith, 72.

e. How much credit is to be given to a witness, is clearly a question for the court below. Ib.

f. The appellate court will not willingly reverse a judgment upon a point not taken on the trial nor urged on the appeal. Ib.

g. This section does not authorize the county court to review the evidence before the justice, and if in the opinion of the court the verdict is too large, to reduce it. But the county court may now reverse as to some of the defendants, and affirm as to others, and so as to plaintiffs. The words errors of fact as used in this section have no reference to an erroneous finding of the court or jury upon the evidence, but it refers to those errors of fact not appearing from the record or evidence, such as the infancy, coverture, &c., of some of the parties, who have not properly appeared. If there is no evidence to support the judgment it must be reversed, if there is evidence on both sides, a mere conflict of evidence, the judgment must be affirmed.

An entire judgment as for damages cannot be reversed in part and affirmed in part. Kasson v. Mills, 8 Pr. R., 377.

a. The words, of fact, added to this section in 1851, did not increase the powers of the county courts over trials of fact in courts of justices of the peace. Adsit v. Wilson, 7 Pr. R., 64.

b. On appeal, the county court has no power or authority to reverse or affirm a judgment on mere questions of fact found by the evidence before a justice or a jury. And the supreme court cannot, on appeal from the county court, review such evidence on mere questions of fact. 16. and Kasson v. Mills, 8 Pr. R. 377.

c. The term "error of fact" does not refer to any error or mistake of the jury in finding the facts; it means such facts as affect the regularity and validity of the proceedings and still do not appear on the record. Adsit v. Wilson, supra.

d. In a subsequent case, Hurd v. Beeman, 8 Pr. R., 256, Sheldon, Co. Judge, after referring to Adsit v. Wilson, supra, and remarking, that decision was founded on the code of 1851, says, "It is necessary to examine the practice to be observed under the existing statute (code of 1852), in attempting to review a judgment of a justice for an error in fact. The alleged errors may be determined upon affidavits; and the question is how these affidavits are to be presented to the appellate court, and who may present them. The appellant, in this case, caused affidavits to be served upon and returned by the justice, with his return to the notice of appeal, which affidavits stated the error fully, in the nature of an assignment of errors. This may have been well enough, so far; but I think by the spirit of the decision in Adsit v. Wilson, and the general rule which would allow each party to have a full hearing upon a disputed point or an opportunity to have it, that the appellant has not properly brought the error before the court. He should at some time have informed the respondent of his intention to assign the error, and allowed him the privilege of denying it, in the nature of a joinder in error, if he chose so to do. Then each party would be enabled to inform the court by affidavits of the facts, and present it with the material upon which action could consistently be founded in determining the alleged error. Otherwise the investigation is ex parte, and would be a surprise, and might work serious detriment to a respondent who, until the argument of the appeal, might be entirely unaware of the alleged error of fact. I think that, at some time before the argument of an appeal founded on errors in fact, the respondent should be served with copies of the affidavits which are relied upon to support the affirmative of the allegation; and then when the appeal is brought on for argument, the respondent would be enabled to contest the error by counter affidavits, leaving the question for the court to decide. What length of time is necessary is not important for me to say; but it may be well to remark that it would seem that the rule regarding special motions would be a safe one to follow, and which would probably be sufficient."

e. The finding of a jury in a justices' court upon a question of fact is conclusive, although against the weight of evidence, the county court, on appeal, cannot properly disturb the verdict. It is only when the facts of a case are undisputed, or the evidence is not conflicting and is free from reasonable doubt, that such a verdict can be set aside as contrary to or against evidence. Bennett v. Scutt, 18 Barb., 347.

f. Upon a question of fact, the finding of a justice is the same in effect as the verdict of a jury. Harpel v. Curtis, 1 Smith, 78.

g. A variance between a pleading and the proof, the first alleging delivery of goods to the defendant, and the latter showing delivery to a third person on the defendant's credit, is not ground for a reversal of a judgment, when the merits have been investigated and judgment done between the parties. Briggs v. Evans, 1 Smith, 192.

h. The court on appeal will not notice an objection that evidence given was irrelevant, when the appellant on the trial acquiesced in its reception. Frost v. Handford, 1 Smith, 540.

i. It is only in a very clear case, and one in which the court feels assured that it can do complete justice between the parties, that an error of the court below in

admitting illegal testimony, which may have influenced the decision of the cause, will be disregarded on the appeal. Main v. Eagle, 1 Smith, 619.

a. When the appellate court sees clearly and beyond all doubt, that the rejection of proper or the admission of improper evidence could in no way materially affect the result, the judgment of an inferior court will not on that ground be set aside. Persse v. Cole, 1 California Rep., 369; Harper v. Leal, 10 Pr. R., 276.

b. 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 Smith, 411.

c. Where evidence offered in 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 on the right ground. Bellows v. Sackett, 15 Barb., 96.

d. So where evidence is admitted by the justice after objection, and it appears from the return that the objection was general and the court can see that the subject-matter of the evidence was proper, and that only the manner of proving such facts was objectionable, it will presume that no objection was made to the manner of proving the fact, but that the objection was to the proof of such fact. Ib.

e. A judgment once rendered in a justice's court, cannot be opened on appeal and a new trial allowed on the ground that the defendant who appeared on the trial neglected to produce certain evidence which would have been a bar to the suit. Section 366 only applies to cases where the defendant does not appear on the trial. Bunker v. Latson, 1 Smith, 410.

f. Thus where a defendant who held a release from the plaintiff, appeared on the trial but did not use the release as a defence, and judgment being given against him, appealed to the common pleas, and on the appeal produced the release and asked to have the judgment reversed and a new trial ordered to enable him to avail himself of the release as a defence, it was held no ground for reversing the judgment, and it was affirmed. 1b.

g. If on the trial of an action before a justice the defendant omits to raise the objection that the plaintiff, an assignee of the cause of action, has not proved title to the demand sued upon, he will be deemed to have waived such proof and admitted the plaintiff's right to sue, and cannot raise the objection on appeal. Austin v. Burns, 16 Barb., 643.

h. If a complaint in a justice's court is insufficient, the defendant should demur to it; he cannot, upon appeal, object to it in point of form, Neff v. Clute, 12 Barb., 466; and in Cushingham v. Phillips (1 Smith, 416), where the plaintiff complained in a justice's court for money had and received, damages $41 66. The defendant answered a general denial. The cause was tried on the merits and judgment rendered for the plaintiff. The defendant appealed, and on the appeal objected to the form of the complaint; and by the court, "An objection is taken to the form of the complaint, and it is not without force. But as the cause has been tried upon the merits, and we have power upon appeal to amend the pleadings so as to promote substantial justice, we order the pleadings to be amended according to the facts, if such amendment should be necessary."

i. Where in the court below, 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, held that it was a matter within the discretion of the justice, it not appearing that the opposite party was prejudiced, the judgment would not be reversed for that cause. Harpel v. Curtis, 1 Smith, 78; but the refusal or the justice to allow additional evidence to be given after a motion for a nonsuit, forms no ground for reversing the judgment. Reed v. Barber, 3 Code Rep., 160.

j. Under the law of 1837 (p. 538) authorizing appeals to the superior court of New York from the judgments of assistant justices, it is enacted "that the court

may affirm or reverse the judgment in whole or in part, or give such judgment for either party as the very right of the matter may seem to require ;" and on that provision it was held that the word "party" meant plaintiff or defendant, and included all the persons belonging to the particular class; and that an entire judgment against several defendants, whether rendered in an action for tort or upon contract, cannot be reversed as to one defendant and affirmed as to the others. Sheldon v. Quinlen, 5 Hill, 441.

a. The county court cannot, on appeal, reverse in part and affirm in part a judgment of a justice's court rendered for entire damages. If there is no evidence to support the judgment it must be reversed; if there is evidence on both sides-a mere conflict of evidence—the judgment must be affirmed. Kasson v. Mills, 8 Pr. R., 377.

b. The court, on appeal from the justice's court, will not reverse a judgment on the ground that a preponderance of evidence (although conflicting) appears to be against the verdict, when the case is not so clear as to warrant the presumption of bias, partiality, or obvious misapprehension or mistake on the part of the jury. Easton v. Smith, 1 Smith, 319.

c. Although the appellate court will not weigh the evidence below so as to reverse, if it merely preponderates against the judgment, yet a material defect of proof is fatal to the judgment. Carter v. Dallimore, 2 Sand., 222.

d. Where the appellant asks to have the judgment reversed on the ground that it was rendered on incompetent testimony, the appellate court will govern itself by the same rule as if the matter were before them on a motion for a new trial. Bert v. Smith, 5 Barb., 283.

e. Where, in the return of a justice of the peace to an appeal, there is abundant evidence, of an unexceptionable character, to sustain the verdict of the jury or the judgment of the justice, the court will not reverse the judgment on account of an improper question being put to a witness and answered. Spencer v. Saratoga and Wash. R. R. Co., 12 Barb., 382.

f. In reviewing the judgments of courts of justices of the peace, the return is not to be treated like a bill of exceptions taken at the circuit, but like a case to set aside the report of referees or a verdict at the circuit; and if it is apparent that substantial justice has been done, the judgment is not to be reversed for technical defects not affecting the merits. Ib.

g. The court will not reverse the judgment of a justice of the peace, in a case where no one appeared for the defendant, for the error of the justice in permitting an improper answer to be given by a witness, if there is enough testimony besides, free from all objection, to sustain the judgment. Buck v. Waterbury, 13 Barb., 116.

h. The mere fact that the defendant "forgot the time of trial," unaccompanied by any circumstances explaining or excusing his forgetfulness, is not satisfactorily excusing his default within the meaning of section 366 of the code, so as to warrant this court to order a new trial before the justice. Whether when the defendant does appear at the return of the summons, and afterwards at successive adjourn ments, but finally fails to attend on the trial, he can be said to have "failed to appear before the justice,"-query? (Beebe v. Roberts, New York Common Pleas, October, 1853.) And so, when on the return day the defendant appeared and answered, and the cause was adjourned, and on the adjourned day the plaintiff, in the absence of the defendant, proved his case and had judgment, and it appeared the defendant's absence was occasioned by his attorney mistaking the day to which the cause stood adjourned. The defendant did not swear to having any defence; held, that it not appearing that manifest injustice had been done, the court would not reverse the judgment; and query-whether in any case after the defendant has appeared and answered, the court can relieve him on the ground that he mistook the day to which the cause was adjourned? Mix v. White, 1 Smith, 614.

i. A defendant may properly be said to fail to appear before a justice of the peace, within the meaning of this section, not only where he does not answer on the return of the summons and the plaintiff takes judgment, but when he neglects to attend on

the day to which the cause is adjourned, and the trial proceeds without him. Armstrong v. Craig, 18 Barb., 387.

a. It was intended by this section to provide for a case where the plaintiff practises a fraud upon the defendant, induces him not to attend the trial on the adjourned day, and thereby procures a judgment wrongfully. Ib.

b. If a defendant in a suit before a justice honestly believes that an adjournment has been agreed upon between him and the plaintiff, and in consequence of such belief is induced to absent himself from the trial and to make no preparation for it, this furnishes a sufficient excuse for his default, and he brings himself within the latter clause of section 366. But he must go further. He must show that manifest injustice has been done. A bare affidavit of merits is not sufficient. Facts must be stated, and not conclusions, to enable the court to see that such injustice exists. Ib.

c. Where a summons issued by a justice of the peace was, during the absence of the defendant from home, served upon his son, and returned by the constable as personally served, and the justice, without any appearance by the defendant, rendered judgment for the plaintiff, held, that the judgment might be reversed on appeal on the error as to the service being clearly shown to the appellate court, and that the remedy by appeal was applicable as well to cases of jurisdictional defects as to those of mere irregularity. Fitch v. Devlin, 15 Barb., 47.

d. To set aside judgment in the marine or justice's court, where the defendant has failed to appear, an appeal must be brought, and the application for relief made upon the justice's return and affidavits. The court of common pleas has no jurisdiction to entertain a motion for relief in such cases, until the judgment is before it on appeal. Donnell v. Cornell, 1 Code Rep., N. S. 282.

e. Where it appears on a trial in a justices' court, that a plaintiff is a nonresident, and that he has not given the requisite security, he should be nonsuited; and if the justice omits to nonsuit and renders judgment for the plaintiff, it will be reversed on appeal. Allen v. Stone, 9 Barb. 60.

f. If the justice omits to wait an hour after the time when the summons is returnable, before he proceeds to swear witnesses in the cause, or if he improperly restricts the defendant to one particular defence, the judgment will be reversed on appeal. Ib.

g. Where no notice of appeal or other paper specifying the grounds of appeal is submitted, and no points or arguments are presented on behalf of the appellant, calling the attention of the court to any grounds for sustaining the appeal, the court, if it sees that justice has apparently been done, will not be ingenious to discover errors in the proceedings below, but will rather assume, that if the appellant or his counsel cannot discover and point out error, none exists. Suydam v. Munson, New York Common Pleas, October, 1853.

See sections 52 to 68 inclusive; pages 54 to 77, ante.

roll.

§ 367. [318.] (Amended 1852.) Existing suits. Judgment

To every judgment upon an appeal there shall be annexed the return on which it was heard, which shall be filed with the clerk of the court, and shall constitute the judgment roll.

§ 368. [321.] (Amended 1849.) Existing suits. Costs, how awarded.

If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party.