Whipple v. Rogerson

78 Mass. 347

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1859
• Status: Published

Opinion

Dewey, J.

To a plea in abatement that the plaintiff is a feme covert and that her husband should have been joined with her in the suit, it is a good answer that such fact was first alleged in an answer filed after the filing of an affidavit that the party had a substantial defence to the action, and intended to bring the same to trial. Cole v. Ackerman, 7 Gray, 38. Nor can the defendant avoid the effect of postponing filing his plea in abatement until after filing his affidavit of defence as above stated, upon the ground of the omission in the affidavit of the words “ on the merits; ” the defendant acting upon the same as an affidavit entitling him to file an answer to the merits, and actually filing such answer. The case must be treated as one where the defendant had filed an affidavit authorizing a substantial defence on the merits; and the plea in abatement was properly rejected as filed too late.

Exceptions overruled.