delivered the opinion of the court.

The appellee moves to dismiss this appeal on the ground, that it was made returnable at the January term, whereas it should have been made returnable in November.

The order of the judge was given on the 1 Oth of September, and the next term was that of November last.

But it is contended by the appellant, that this irregularity has been caused by an appearance in this court, and an agreement by the appellee, endorsed on the record, that the case be postponed till March term. The court is of opinion, that this does not amount to a waiver of his exception to the irregularity.

It is therefore ordered, that the appeal be dismissed at the costs of the appellant.