
    
      Sturgus' adm’r. vs. White's adm’r.
    
    
      Aítbaí to the Cm. C.
    Case 39.
    Error to the Madison Circuit Court; Geo. Shannon, Judge.
    
      Justices of the Peace. Constables. Jlppeals.
    
    It cannofbe objected in the circuit court for the first time,», that the warrant had beeu returned and the judgment rendered against the appellant,defendant below, by a justice out of the district where defendant resided. J
    
    May 2.
    
      Buck for plaintiffs; Caperton for defendants.
   Judge Owsley,

delivered the Opinion of the Court.

It seems to this court that it was irt violation of that provision of the act of assembly concerning appeals from the judgments of justices of the peace, which forbids the dismission of any appeal for an irregularity in the proceedings had before the justice, and which requires the appeal to be tried on its merits in the circuit court as though no trial had been previously had thereon, to allow the appellant m the circuit court (defendant in the warrant) for the first time to. object on the trial of the appeal to the return made by the constable of the warrant to a justice without the district in which the defendant in the warrant resided, and that it was erroneous for the circuit court to sustain the objection taken on that ground, and to instruct the jury to find in favour of the appellant.

The judgment is therefore reversed with cost, the cause remanded to the court below, and further proceedings there had, not inconsistent with this opinion.

Hanson for appellant; Talbott for appellees.  