
    Harriet G. Whipple vs. Robert Rogerson.
    An answer in abatement cannot be filed after an affidavit that the defendant has a substantial defence to the action, and intends to bring the same to trial, although the affidavit omits the usual words “ on the merits.”
    Action of contract brought in the superior court of the county of Suffolk. Within the tithe fixed by statute for filing an affidavit of merits, the defendant filed the following affidavit: “ I verily believe that I have a substantial defence to the above entitled action, and intend to bring the same to trial.” The answer afterwards filed alleged that the plaintiff was a married woman, and therefore not entitled to maintain said action.
    At the trial, Huntington, J. ruled that the defence of coverture was not open to the defendant, after the filing of the above affidavit; and he alleged exceptions.
    
      E. F. Head, for the defendant.
    The words “ on the merits ” being omitted in the affidavit, there was no inconsistency between it and the answer. The plaintiff’s coverture does not appear in the writ, and it does not appear that the defendant did not plead it as soon as he was aware of the fact.
    
      G. Griggs, for the plaintiff.
   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.  