
    Margaret A. Holdsworth vs. Mary D. Tucker.
    Bristol.
    October 24, 1888.
    October 29, 1888.
    Present: Morton, C. J., Devens, W. Allen, C. Allen, & Knowlton,. JJ.
    
      Point not raised at Trial not open on Motion for a New Trial — Appeal.
    
    On a motion for a new trial, a party cannot avail himself of a point of law which was open to him, but was not raised, at the trial; and no appeal lies from the overruling of such motion.
    Contract to recover for breach of a bond for a deed, given, in the penal sum of three hundred dollars, by the defendant to the plaintiff.
    Trial in the Superior Court, without a jury, before Staples, J., who found for the plaintiff, and ordered execution to issue to her i for f29.33. Thereafter the plaintiff, being dissatisfied with the amount, filed a motion for a new trial, on the ground then for the first time set up, that, upon non-performance of a bond given for a specific sum for the performance of an act at a certain time, the finding and damages should be for the penal sum of the bond. The motion was overruled; and the plaintiff appealed to this court.
    
      A. E. Bragg, for the plaintiff.
    
      H. K. Braley, for the defendant, was not called upon.
   By the Coubt.

The question of law which the plaintiff now attempts to raise was open to her at the trial. As she did not then raise' it, she cannot avail herself of it upon a motion for a new trial. No appeal lies from the order of the Superior Court overruling the motion for a new trial. Whittaker v. West Boylston, 97 Mass. 273, and cases cited.

Appeal dismissed.  