¶1After the filing of our last opinion deciding that the execution issued in this case was, in the circumstances, properly in trespass, the defendant, by leave of court, filed a motion for reargument.
¶2As we understand it, the gist of her present contention is that since this case involved a charge of embezzlement only, the plaintiffs, in attempting to recover the money allegedly withheld, should have brought their writ and declaration in case and not in trespass, because only actions involving direct force should be brought in trespass under the statute; and that this would affect the nature of an execution issued after judgment, thus entitling defendant to have the execution quashed.
¶3In our opinion it is now too late for the defendant to raise this question for the first time. She did not demur to the declaration as filed or attempt to attack the plaintiffs' pleadings in any other way. The case proceeded to a determination on its merits on the original writ and pleadings which were all in trespass. As far as this case is concerned, therefore, it was an action of trespass under the statute and was so treated by the parties and the trial justice. In these circumstances the defendant's contention has no force and cannot be considered now as a ground for reargument.
¶4Motion denied.