This is an action of assumpsit for $1,863.77, balance due upon a cargo of coal sold and delivered, to defendant.

November 11, 1904, the defendant filed its plea of general issue and account in set-off, amounting to $500, against the plaintiff, and afterwards on, March 28, 1905, filed its motion to dismiss the case “on the ground that said plaintiff corporation, being a foreign corporation, has not complied with the provisions of chapter 253 of, the General Laws of Rhode Island and chapter 980 of the Public Laws of Rhode Island by appointing some person resident in this State as attorney to (1) accept service of process.” Want of capacity to sue should be set up by a plea in abatement, and is waived- by pleading to the merits. 1 Ency. PL & Pr. 10, and cases cited.

After a plea in bar to the action the defendant can not plead in abatement, unless for new matter arising after the commencement of the suit.” Chit. PL *p. 441.

The motion to dismiss is therefore denied.