Heyward v. Field Bros.

In the case of McCall v. Tufts, reported in the 85 Gra. 619, it was decided that when a suit is brought in a iustice’s court upon an unconditional contract in writing, if there be a defense thereto it must be filed at the first term; that if not filed at that term, the defendant loses his right to make any defense to the suit. This decision was based upon an act approved September 26th, 1883 (see Acts of 1882-3, p. 103), and in that decision this act was construed as requiring that a plea *715should be filed, and it was accordingly held that a plea could not be filed in a justice’s court except it be in writing. Subsequently to the rendition of that decision, however, the General Assembly passed an act of date October 16th, 1891 (see Acts of 1890-1, p. Ill), amending the act of 1888, above referred to, by striking therefrom the words “plea is filed” and inserting in lieu thereof the words “defense is made,” thus leaving the law as it stood prior to the passage of the acb of 1883, in so far as it required formal written pleas to be filed in the justice’s court at the first term as essential to the making of other defenses at a subsequent term. Therefore the rule of practice established by the act of 1883, as announced by the decision in McCall v. Tufts, supra, was repealed by the act of 1891; so that now no formal plea need be filed at the first term in a justice’s court. If the defendant, in response to the summons, appear and mark his name, or the name of his counsel, on the docket in that court, it is equivalent to filing the plea of the general issue; it is a making of his defense at the first term, and thereafter he may plead any other matter appropriate to his defense.

Let the judgment of the court below be Reversed.