Gerrish v. Hayes , 185 Mass. 222 ( 1904 )

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.