The right of appeal from a judgment of a justice of the peace to the court of common pleas must always depend upon, and be regulated by, the existing statute law. The St. of 1783, c. 42, § 6, provided that any party aggrieved at the judgment of any justice of the peace in a civil action, where both parties had appeared and pleaded, might appeal therefrom to the next court of common pleas. This statute remained in force, and regulated the right of appeal from justices, until the period of enacting the revised statutes, by force of which, (c. 85, § 13,) new provisions were introduced.
The original right of appeal, it will be perceived, was confined to cases where an issue had been joined. The provision as to an appeal from the common pleas to the supreme judicial court had been less uniform. By St. 1782, c. 11, § 2, any party aggrieved by a judgment of the court of common pleas, might appeal, as well where no issue had been joined, as where the parties had appeared and pleaded. Such continued to be the law as to appeals from the common pleas, until the passing of St. 1803, c. 154, by which it was enacted (<5> 5,) that no appeal should thereafter be allowed from any judgment rendered in any court of common pleas on default. The St. of 1811, c. 33, establishing circuit courts of common pleas and repealing the statutes creating county courts, also *439confined the right of appeal to cases where an issue had been joined; as did also the St. of 1820, c. 79, establishing the present court of common pleas.
Such was the law in relation to appeals, at the time of the enacting of the revised statutes. The commissioners for revising the statutes recommended expunging the clause in the foregoing statutes, confining the right of appeal to cases in which issue had been joined, as well in reference to appeals from justices of the peace, as from the court of common pleas. Commissioners’ notes to c. 82, § 6, and c. 85, § 12. The legislature adopted this recommendation, and the words “in which any issue has been joined ” were stricken out, in both cases. The effect of this change in the statutes has been to confer the right of appeal on a party aggrieved by a judgment of a justice of the peace, as well upon a default as upon an issue-joined by the parties. The judgment upon a default may be for a sum too large, or too small, or may be rendered for causes of action not embraced in the count; which judgment may be the proper subject of complaint by an aggrieved party, and may be corrected upon an appeal, if seasonably taken.
Supposing the present appeal to be well taken, the plaintiff then insists that the defendant could not avail himself of the proposed defence to the action, by reason of his omission to file a specification of the defence at the time of filing the plea of the general issue, as is required by the general rules of practice established by the court of common pleas. It seems to us that this point is not open to the plaintiff, as the objection does not appear to have been distinctly raised on the trial in the court of common pleas. If it be so, however, we should be strongly inclined to the opinion that the rule referred to does not apply to cases brought before that court by appeaT from a justice of the peace. In many cases the rule could not be applied, as the pleadings might have been filed before the justice. We think, therefore, that this objection, now taken by the plaintiff, must be overruled.
The remaining question, arising upon the admission oj *440evidence tending to show a payment of the demand, seems to present no difficulty. The defendant attempted to show stub payment to have been made while the note was in the hands of a prior holder, and after it was due. The evidence was competent, and its sufficiency was a question for the jury.
Exceptions overruled