delivered the opinion of the court.

The failure of the defendant to interpose its defense in the magis*478trate’s court did not preclude it from defending in the circuit court on appeal. Callahan & Co. v. Newell, ante 437.

Section 1627 of the Code of 1880, which authorizes the plaintiff who sues upon an open account- to make oath to the correctness of the account, and gives to such sworn account the character of evidence, is not applicable except in cases where the cause of action arose ex contractu. Miss. Central Railroad Co. v. Fort, 44 Miss. 423.

Reversed..