The opinion of the Court was delivered by

Notice of trial in each of the above entitled cases was given for the 15th day of June, the term of Court com*344menciug on the 10th of that month. The service of the notice was by mail, allowing sixteen days’ notice to the opposite party prior to the day for which the cause was noticed, but less than sixteen days intervening between the day of mailing and the first day of the term to which notice was given.

The Code (Section 278) requires notice to be given fourteen days before the commencement of the term. This period of time is, in the case of service by mail, extended to sixteen days by Section 427. It is contended that Section 427 fixes the day on which the case is actually tried as that to which the sixteen days’ service by mail must be measured, and not the first day of term. Such an interpretation cannot result when Sections 278 and 427 are properly construed together. Section 278 refers the length of notice to the first day of term. The object of this is manifest; it is to enable attorneys to prepare their cases before the commencement of the term. The propriety of such a rule is apparent.

The primary object of Section 427 is to provide service by mail or a substitute for the personal service contemplated in Section 278. It lengthens the period of notice where service is by mail. It is true that this Section says that such service must be made “sixteen days before the day of trial;” but by the “day of trial”-we can well understand as intended the day appointed by law for trial. That day is fixed and is a proper day to measure from. The day of actual trial cannot be known until it arrives, and, therefore, does not properly subserve the object for which the day of trial is mentioned in that Section. A proper construction of Section 427 leads to the conclusion that where service is made by mail, sixteen days should elapse before the first day of the term to which notice is given.

The plaintiff’s notice was, therefore, irregular; but advantage could only be taken of such irregularity, where the cause was placed on the calendar, by a proper motion on the part of the defendant. The failure of the defendant to make a proper motion in such case is a waiver of the irregularity. It appears by an amendment to the brief that the cause was continued at that term and at subsequent terms. It is also a necessary inference, from the statements contained in the amendments to the brief, that the defendants had notice of the cause being on the calendar and took no steps to avail themselves of the irregularity of the plaintiff.

*345The defendants allege that the amendment just referred to was improperly made while the appeal was pending and without leave of this Court. If the brief prepared for this Court is for any reason incorrect or improper, it is required that the party seeking to take advantage of such fact should make a proper motion to this Court previous to the hearing of the cause on its merits. After argument on the merits is entered upon, or the case is submitted on printed argument, as in the present case, it is too late to make an objection of that character.

Looking, then, to the brief as it stands amended, it must be concluded that the defendants have waived the irregularity in the notice of trial.

The motion should be denied.