| Ark. | Jan 15, 1840
delivered the opinion of the court:
That the defendant had a right to appeal and was regularly in the in the Circuit Court is not controverted. The Rev. Ark. Stat., sec. 172,p. 515, declares “that no appeal shall be allowed unless the applicant, or some other person for him, shall make and file with the Justice an affidavit that th.e appeal is not taken for the purpose of delay, but that justice may be done, and section 176 , requires the court to “ hear, try, and determine the same anew, on its merits, without regard to any error, defect, or other imperfection in the proceedings of the Justice.v
All pleas in abatement (unless to the jurisdiction of the court, or where the truth of such plea appears of record) must be sworn to before they can be admitted or received by any cour( in this State. See Rev. Ark. Stat.p. 57, sec. 1. Whether the plea, in this instance, conformed to the statute or not, this court canuot-determine, as it is not' spread out.
We cannot however discover upon what ground the defendant in error could base an argument in support of such a defence as he has put in; for it is evident that the Legislature when they authorized a party to appeal from the decision of a Justice of the Peace, intended merely to give him an opportunity of again bringing before another court and jury the matter id controversy, and to have the same again tried and determined upon its merits, and this is made more manifest from the affidavit required, that “ the appeal is not taken for the purpose of delay, but that justice may be done.” In this instance, he interposes a plea which has no relation to the merits of the cause, but calculated alone to delay its final termination — a plea which g.oes not to the cause of action, but questions the propriety of the suit, or the mode" of bringing it, leaving the merits or rights of action wholly undetermined. Such pleas are considered odious to the law, or at least not favored. It is clear to us that the defendant, by his appeal, has precluded himself from taking advantage of any irregularity in the proceedings before the Justice, and must rely alone upon such defence as he may have to the cause of action upon which the suit is founded. The same principle was established in the case of McKee vs. Murphy, 1 Ark. Rep. p. 55; and Smith vs. Stinnett, ib., 497; and is considered too-well established to require further argument.
The judgment of the Circuit Court in sustaining the plea in abatement must therefore be reversed and set aside with costs, and this casé remanded to the court from whence it came, for further proceedings to be had therein not inconsistent with this opinion.