
    John H. Gerrish vs. Michael C. Hayes.
    Suffolk.
    November 20, 1903.
    February 27, 1904.
    Present: Knowlton, C. J., Morton, Lathrop, Barker, & Braley, JJ.
    Practice, Civil, Exceptions.
    A defendant excepted to a refusal of the presiding judge to rule that the declaration set forth no cause of action. Thereafter the plaintiff was allowed to amend his declaration, and did so. The defendant asked for no ruling on the amended declaration and stated in his opening to the jury that his only defence was on a question of fact. On this question the jury found for the plaintiff, and the defendant alleged exceptions. Held, that the defence that the declaration as amended set forth no cause of action was not open to the defendant, and that his exceptions based on this ground were frivolous.
    Contract, upon a guaranty in writing of a promissory note. Writ in the Municipal Court of the City of Boston dated November 26, 1901.
    The answer contained a demurrer, and set up the defendant’s discharge in bankruptcy. On appeal to the Superior Court the case was tried before Pierce, J. At the beginning of the trial,' the defendant asked the judge to rule that the declaration did not set forth any cause of action. The judge refused so to rule, and the defendant excepted. To an inquiry by the judge, in what respect the declaration was deemed insufficient, the defendant’s counsel replied that it did not seem to him to set forth any cause of action, and at no time during the trial was any specific defect in the declaration called to the attention of the judge by the defendant.
    The plaintiff was allowed to amend his declaration, and did so. The defendant asked for no ruling on the declaration as amended, and in his opening to the jury said that the only defence was the discharge in" bankruptcy, and offered evidence, which was controverted by the plaintiff, that the plaintiff had notice of the bankruptcy in season to have proved his claim. The jury were given appropriate instructions, to which no objection was made, and found for the plaintiff. The defendant alleged exceptions.
    
      M. 0. Hayes, pro se.
    
    
      W. P. Prime W. O. Qogswell, for the plaintiff.
   Lathrop, J.

While the defendant excepted to the refusal of the judge to rule that the declaration did not set forth any cause of action, he asked for no ruling on the declaration as amended, and in his opening to the jury stated that a question of fact was his only defence. On this question the jury found in favor of the plaintiff. In his brief the defendant contends that the declaration as amended sets forth no cause of action. We are of opinion that this defence is not open to him. The exceptions are frivolous, and are overruled, with double costs.

So ordered.  