Campbell, C. J.,
delivered the opinion of the court.
The defendant in a suit before a justice of the peace did not appear and defend it, but within five days after judgment by default against him appealed to the circuit court, where, on motion of the plaintiff, the court dismissed the appeal and rendered final judgment against the defendant aud surety on the appeal bond, refusing to permit any defense because it had not been made before the justice.
This was erroneous. Appeals from judgments of justices of the *439peace are to be tried anew, as if never tried before, and any defense may be set up for the first time in the circuit court. Section 2384 of the Code of 1880, arms the circuit court with the power to tax costs in such cases according to the justice of the case, and under this authority any abuse by a defendant of the right to set up a defense in the circuit court for the first time on appeal could be prevented from doing injury to the opposite party. This'suggestion is in response to the argument of counsel as to the danger of a defendant withholding his defense until it is disclosed in the circuit court, but it seems to us that no obligation rests on a defendant to appear before the justice of the peace, and that he may submit to a judgment by default and appeal and make his defense for the first time in the circuit court, and in doing so he is but exercising 'his statutory right, and no case occurs to us in which because of this course alone any costs should be taxed against him. We suppose that Marx v. Trussell, 50 Miss. 498" court="Miss." date_filed="1874-10-15" href="https://app.midpage.ai/document/marx-v-trussell-7984451?utm_source=webapp" opinion_id="7984451">50 Miss. 498, misled counsel and court below. It decided that a set-off could not be availed of in the circuit court on appeal for the first time. That may be true because a set-off is a cross action, and to allow it in such case would be to permit a recovery in the circuit court in an action begun there, and not one appealed fiom a justice of the peace, but this does not apply to a defense of the suit. Everything merely defensive is involved in the suit before the justice, and although not disclosed before him is involved in the case on appeal and cannot be said to be something brought into it in the circuit court which was not in it before. The two cases are clearly distinguishable.
Judgment reversed and cause remanded to the circuit court to be tried anew.