The defendants came too late with their objection, denying any authority to institute and prosecute this action. The action was returnable at September term 1864, and the defendants appeared and filed an affidavit “ that they have a substantial defence thereto upon the merits, and intend to bring the same to trial.” Nothing further was done by the defendants during the first term. An answer was filed in vacation, and the case was opened to the jury for trial at the second term. No objection had been taken to the right of the plaintiffs’ attorney to appear at the first term, nor at any time before the cause was opened to the jury. This was too late to raise the question of authority to institute the action.
An affidavit of merits precludes filing at a subsequent period an answer in abatement. Cole v. Ackerman, 7 Gray, 38. Whipple v. Rogerson, 12 Gray, 347. An objection of this character should be taken at the first term. Simonds v. Parker, 1 Met. 508. Gerrish v. Gary, 1 Allen, 214. Hastings v. Bolton, 1 Allen, 529. Pratt v. Sanger, 4 Gray, 84.
In sustaining these exceptions, we are not to be understood as affirming the authority of selectmen to institute and prosecute suits in the name of the town, or to defend suits against the town, without further authority than that which attaches to their office as selectmen. The view taken by this court in Butler v. Charlestown, 7 Gray, 12, and Lexington v. Mulliken, Ib. 280, was that they are not authorized thus to act. But the point then arose under very different circumstances from those in the present case, and presented no question as to the proper time for taking such objection by the defendants.
But while we hold that selectmen, as such, are not thereby egally constituted agents of the town to institute and prosecute *151suits in favor of the town or to appear and defend suits against the town, we do' not suppose that a suit thus instituted under some peculiar emergency and when no other person had been authorized to act in the matter would necessarily be in all cases dismissed upon a motion or plea in abatement for that cause filed at the first term. It would be competent for the court upon reasonable grounds shown therefor to order a continuance of the case, to enable the town to ratify and adopt the suit and appoint agents to prosecute the same.
But however this may be, it is not competent to raise the objection in the manner this was done at the second term, the defendants having filed at the first term an affidavit of merits and substantial defence in the case, and that they intend to bring the same to trial.
Exceptions sustained.