At the trial of this case no question of law was raised in regard to the liability of the defendant on the *456merits, but the only legal defence was in the nature of a claim in abatement, that the plaintiff could not maintain his action, because, at the time of bringing it, he was acting as the attorney of the defendant, for whose benefit the action was brought to meet a claim of another person against her. The contention was, in substance, that conceding the liability of the defendant on the merits, the action was brought improperly and without legal authority, because the plaintiff could not act for himself while acting for the defendant. This was properly a matter in abatement. Boynton v. Willard, 10 Pick. 166, 169.
The first answer was a general denial and a plea of payment. One year and eight months later an amended answer was filed by consent, which again made a general denial and a plea of payment, and added this averment in the nature of an answer in abatement. It appears that the case was heard before an auditor upon the merits, although his report is not before us. At .the close of the evidence at the trial in the Superior Court, the defendant made the request for rulings which raised the questions on which she now relies. So far as appears by the record before us, this was the first time that this defence was brought to the attention of the court.
It was then too late to raise such a question. In the first place, the answer on the merits was a waiver of the right to set up a matter in abatement. The reference to the auditor without objection by the defendant and the hearing before him on the merits were an even more pronounced waiver of any question as to the bringing of the action. This hearing was followed by a trial in the Superior Court, in which, at the close of the evidence, these requests were first made. If the defendant desired to have the case disposed of on the ground that it was brought before the court improperly and without authority, she should have raised the question at the outset. Boynton v. Willard, 10 Pick. 166, 169. Seagrave v. Erickson, 11 Cush. 89. Cole v. Ackerman, 7 Gray, 38. Hastings v. Bolton, 1 Allen, 529. Morton v. Sweetser, 12 Allen, 134, 137.
If the question were open, we might come to the same result. The evidence would warrant a finding that the plaintiff, in bringing the action, was acting in part in his own interest as a creditor of the defendant, and in part for her interest in reference to the *457other claim. There was no evidence that the defendant ever, authorized his bringing the action on her account, and the jury found that she never ratified it, but utterly repudiated it. Upon these findings, if he acted in part for himself, that part of his action well might stand, and the case would be before the court legally.
Exceptions overruled.