Oases appealed from courts of justices, of the peace to the circuit court must 'be tried ele novo. Code, § 488. •
We do not understand that a defendant on the trial in the circuit court is confined to the defenses interposed -by him in the justice court. On the contrary, he may interpose any -defense of which he may be advised is meritorious, except the one going to the jurisdiction of the justice. In order to avail himself of the defense of want of jurisdiction, he must have made the objection in the lower court.—L. & N. R. R. Co. v. Barker, 96 Ala. 435.
Aside from the rule of practice shown to be in force in the circuit- court of Pike county, it was entirely within the disci’etion of the trial judge to allow the plea of the general issue to be filed, and the exercise of that discretion will not be reviewed or controlled on appeal.—Reed Lumber Co. v. Lewis, 94 Ala. 626.
On the, issue of payment vel non the evidence was in conflict. There» was, therefore, no error in refusing the affirmative el large requested by plaintiff.
The other charge refused to the plaintiff was also properly refused. Assuming that the evidence shows without conflict a sale l>v plaintiff, the credibility of the testimony offered to prove the sale was a question for the jury. The charge under consideration pretermitted all reference to that issue and -directed a verdict for the plaintiff should the jury find the evidence equally balanced on the issue of payment. Under this instruction the jury would have had to return a verdict for plaintiff, notwithstanding they may have discredited the testimony offered by plaintiff to establish a debt against defendant.
*305What we have said disposes of all the grounds of the motion for a new trial except the last. As to that ground, under the principles announced in Cobb v. Malone, 92 Ala. 630, we cannot affirm that the trial judge ivas in error in overruling it.
Affirmed.