It appears from an examination of the testimony, returned with the record, that this case was tried on its merits without regard either to the extent of the plaintiff’s claim, or the aggregate amount and nature of the items presented by defendants under their pleas of “non-assumpsit, payment, payment with leave and set-off.” No points for charge were presented in writing by either side, but, when the case was about being. *237submitted, to the jury, the court was verbally requested by plaintiffs counsel, to withdraw all the evidence introduced by defendants in support of their plea of set-off, because the items of set-off aggregated more than $800, the limit of the justice’s jurisdiction, and to instruct the jury to find for plaintiff the full amount of his claim. The refusal of the court to withdraw the evidence and instruct the jury as requested, is the subject of complaint in the several specifications of error.
In his opinion refusing a new trial, the learned judge, referring to the manner in which the case was tried, says: “When .....objection was about being made to the admission of defendant’s testimony as to set-off, because it was apparent the amount of set-off claimed would exceed the jurisdiction of a justice of the peace and could not have boon admitted by the justice, we very plainly intimated to counsel that if the justice had not jurisdiction of defendant’s set-off, neither had he of plaintiff’s claim as shown by the narr and pleadings in the ease, as both in amount exceeded the jurisdiction of a justice of the peace, and that it would probably be best to dismiss the case for that reason; but, neither party desired that this should be done. Both appeared desirous of proceeding with and disposing of the case on its merits. The objection was not pressed nor entered and the case was proceeded with on its merits, as if originally brought in this court. The whole dealings and accounts between the parties'were fully and fairly laid before the jury. The plaintiff, without objection on the part of the defendants, took his chance of obtaining a verdict, and did obtain a verdict for $22.68.”
In view of what clearly appears to be the fact, that technical objections were waived and by mutual consent the case was tried upon its merits as though the suit had been originally brought in court, it was too late, after all the testimony was before the jury without any exception to its admission, to ask the court to strike out the evidence on which defendants mainly relied, and to direct a verdict in favor of plaintiff. Under the circumstances, the court was clearly right in refusing to do either. The assignments of error are not sustained.
Judgment affirmed.