The only question of law arising on this appeal is whether the order of the Superior Court was within its power, if that court found the facts to be as alleged in the motion. There can be no doubt that St. 1894, c. 405, confers this power on the court. It is contended that the motion was waived by the filing of an answer. It appears that on April 7,1896, which was Tuesday after the first Monday of April, on which, as we infer, the writ was returnable, the motion was filed, and that afterwards on the 5th day of May an answer was filed, in which it was expressly stated that the defendant did not waive the motion. The filing of such an answer was not a waiver of the motion. The order discontinuing the action with costs must be affirmed.
So ordered.