delivered the opinion of the Court. The defendant, after a judgment of the Court of Common Pleas against him, on his plea in abatement, by pleading to the merits, waived his right to insist on his plea in abatement. This Court has repeatedly said, that where the Court of Common Pleas refuses to receive a plea in abatement, which ought to be received, and the defendant is obliged to plead over, this Court will take notice of it and afford him redress. Cleveland v. Welch, 4 Mass. R. 591 ; Rathbone v. Rathbone, 4 Pick. 89. But the reason is, that in such cases there is no judgment from which the defendant could take an appeal, and therefore if this Court did not take notice of it, when the cause was brought up on a plea in bar, he would be without remedy. But in this case, the plea was received, the Court rendered a judgment upon it, and by an express provision of the Revised Statutes, c. 82, § 6, the defendant might have appealed, as from a final judgment, and taken the opinion of this Court on the validity of his plea in abatement. In the case of Pattee v. Harrington, 11 Pick. 221, it was held, that by pleading to the merits, though as in the present case, in the form of a common demurrer with reservation, the defendant waived his right to plead in abatement.
Motion to consider the plea in abatement overruled.