Crosby v. Harrison

Gray, C. J. The motion of the defendants cannot be sustained as a motion to dismiss, because it is not founded on matter of law apparent on the record. It is not entitled, and was not treated by either party in the court below, as a plea or answer in abatement, as is conclusively shown by the defendants’ offer of evidence having been made to the court, whereas any extrinsic fact pleaded in abatement would be triable by a jury. If the court had authority to entertain the suggestion of a fraudulent abuse of process upon a summary motion, without putting the defendants to plead and try it in regular form, it was certainly within its discretion to decline to do so. Davis v. Marston, 5 Mass. 199. Morton v. Sweetser, 12 Allen, 134. Exceptions overruled.