Wilbur v. Taber

75 Mass. 361

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Merrick, J.

The exceptions of the plaintiff must be overruled. The entry upon the record of the magistrate that the “ defendant appears and pleads orally and says he is not guilty,” is equivalent to a denial of the plaintiff’s right to maintain his action, and is exactly to the same effect as if those words had been used. This, by express permission of the statute, is a joinder of the issue, upon which a trial may be had. The defendant was therefore entitled to proceed to trial; and, by a further provision of the statute, to give in evidence any mattei which would have been admissible if the defence had been made under any general or special plea in bar. Rev. Sts. c. 85, §§ 11, 12. No new pleading was ordered, and therefore none was required in the common pleas, when this case was carried there by appeal. And the rights of the parties, in relation to the production of evidence upon the trial in that court, were the same as those to which they were entitled when they were before the magistrate to whom the writ was made returnable. Rule 19 of C. C. P. See also St. 1836, c. 273.

Exceptions overruled.