The statute is very express that appeal causes from justice’s courts, shall be tried by the appellate court, acccording to the justice and equity of the case, without regarding any defect in the warrant,' capias,
The affidavit required when the process is by attachment, is ordinarily drawn by the justice, and in our judgment, a defect in it is cured by the appeal.
It is true, pleas of this nature have been permitted to the right to sue a defendant, who for some particular cause is exempt from the jurisdiction; [Reed v. Coker, 1 Stewart, 22.] .But in such cases .the defect is not in the proceeding, but in the jurisdiction. In McRory v. Smith, 1 Ala. Rep. N. S. 157, we held that no defect of this kind would authorize the appellate court to dismiss an appeal.
Judgment affirmed.