
    Samuel Capewell and another v. Waterman L. Ormsby.
    On the argument of an appeal from the judgment of a justice’s court, the return is conclusive as to the facts therein certified, and affidavits produced by either party, to the appellate court, will be disregarded, 
    
    Where all the facts, occurring on the trial in the court below, are not returned by the justice, the party aggrieved should move, upon his affidavits and other proofs, for an order to compel a further return before proceeding to the argument of the appeal.
    Appeal by the defendant from a judgment against him in the First District Court, for work, labor and services. The appellant produced affidavits to supply alleged deficiencies in the justice’s return, and based his argument in favor of a reversal upon the state of the proofs appearing from the affidavits in connection with the return.
    
      Isaac WortendyTce, for the appellant.
    
      J. H. Kartt, for the respondents,
    cited Deconny v. Spalding, 3 Code Rep. 16; Rawson v. Adams, 17 J. R. 130.
    
      
      
         This, of course, is subject to the provisions of § 366 of the Code, which relate to cases where the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, and also to cases where the defendant failed to appear before the justice, but excuses his default, and shows, by affidavit or otherwise, that manifest injustice has been done.—Rev.
    
   By the Court. Daly, J.

If any thing is omitted in the return, the remedy of the appellant is to procure a further return. The whole of the appellant’s argument, or that which is material to show that the j udgment was erroneous, is founded upon facts which do not appear on the return. He should have made an application to compel the justice to return as to these facts, and having neglected to do so, his case must now stand upon the return as it is.

[The opinion proceeds to discuss the evidence and rulings in the court below, as certified in the return, and concludes with concurring in the propriety of the judgment.]

Judgment affirmed.  