| Mass. | Jun 21, 1905
At the trial of this case no question of law was raised in regard to the liability of the defendant on the
The first answer was a general denial and a plea of payment. One year and eight months later an amended answer was filed by consent, which again made a general denial and a plea of payment, and added this averment in the nature of an answer in abatement. It appears that the case was heard before an auditor upon the merits, although his report is not before us. At .the close of the evidence at the trial in the Superior Court, the defendant made the request for rulings which raised the questions on which she now relies. So far as appears by the record before us, this was the first time that this defence was brought to the attention of the court.
It was then too late to raise such a question. In the first place, the answer on the merits was a waiver of the right to set up a matter in abatement. The reference to the auditor without objection by the defendant and the hearing before him on the merits were an even more pronounced waiver of any question as to the bringing of the action. This hearing was followed by a trial in the Superior Court, in which, at the close of the evidence, these requests were first made. If the defendant desired to have the case disposed of on the ground that it was brought before the court improperly and without authority, she should have raised the question at the outset. Boynton v. Willard, 10 Pick. 166, 169. Seagrave v. Erickson, 11 Cush. 89. Cole v. Ackerman, 7 Gray, 38. Hastings v. Bolton, 1 Allen, 529. Morton v. Sweetser, 12 Allen, 134, 137.
If the question were open, we might come to the same result. The evidence would warrant a finding that the plaintiff, in bringing the action, was acting in part in his own interest as a creditor of the defendant, and in part for her interest in reference to the
Exceptions overruled.