
    * David Wilcox versus Josiah Mills.
    If one summoned as trustee in a foreign attachment out of his own county, tie being the only trustee summoned, appear to the writ, and move to stay the proceedings against him as trustee, or pray judgment «whether he shall be holden, he will be discharged as of course, and will be entitled to costs, and perhaps to extra costs, within the equity of the statute.
    If he does not appear, but is defaulted upon the original process, he cannot plead the same matter in abatement to tho scire fados, but must submit to an examination. He cannot still be charged beyond the value of the effects in his hands at the time of the first attachment But if it appears that he had no effects at that time, he will not be held to pay costs ; but will recover costs, because sued out of his county.
    This was a scire facias against Mills, an inhabitant of Worthington, in the county of Hampshire, who had been summoned in a previous process of foreign attachment as the trustee of a debtor of the plaintiff, Wilcox. The former process, as well as the present scire facias, were brought in the county of Worcester, Mills being the only person summoned as trustee. The object of the present suit was to obtain execution against the estate and body of Mills, to satisfy the judgment which the plaintiff had recovered against the goods and effects, of the original debtor in the hands of Mills.
    
    To this scire facias the defendant pleaded in abatement as follows: —
    “ And the said Josiah Mills comes, when, &c,, and prays judgment of the plaintiff’s writ and declaration, and says that at the time of suing out and service of the original process therein men tioned, and also at the time of suing out and service of the said scire facias, he was, and ever since has been, an inhabitant of, and dwelt within, the town of Worthington, in the county of Hampshire; and was not, and never has been, an inhabitant of, or dwelt in, the county of Worcester aforesaid; and that he is the only trustee named in the said process; wherefore he prays judgment of the said declaration, and that the same may be quashed.”
    To this plea the plaintiff demurred generally, and the defendant joined in demurrer,
    At the last September term at Worcester, F. Blake, for the defendant, cited stat. 1794, c. 65, <§> 1: “ When the trustees named in such writ do all dwell in one county, such writ shall be made returnabld in the county where all the trustees dwell.” The only question, which can be made, is whether the defendant, having suffered himself to be defaulted upon the original process, is now too late to avail himself of this provision. But it seems very clear that the Court in Worcester had no jurisdiction of the [ * 219 ] cause upon the original * writ, and consequently cannot take cognizance of this scire facias, brought merely in aid of the original process. The whole proceedings are coram non judice, like a common personal action brought in a county, where neither of the parties dwell, or a real action instituted in a county other than that wherein the land lies.  The case here is stronger than that of Williams vs. Blunt, 
       for there the parties had pleaded to the merits, yet the Court dismissed the suit for want of jurisdiction. In our case there was no appearance of the trustee in the original suit, but a default only.
    
      Bigelow, for the plaintiff,
    insisted that this matter ought to have been pleaded to the former process. It was unreasonable that the defendant should lie by until this period, and now, after the plaintiff has been put to so much expense in prosecution of his claim, come in with a plea that has no relation to the merits, and, if available at any stage, was certainly so upon the original writ. By appearing and imparling to the first writ, the defendant has acknowledged the jurisdiction of the Court, and waived his right to this objection.
    By statute of 1784, c. 28, § 13, all personal actions are to be brought in the county where one of the parties lives, if they both live within the commonwealth ; and when an action shall be commenced in any other county, the writ shall abate, and the defendant be allowed double costs. But if the defendant will appear to such action, without pleading such matter in abatement, and afterwards be defaulted, he cannot take advantage of the provision made for his benefit alone, but will be held to have waived it.
    
      
      
        Frumpton vs Pettis, 2 Lev. 23, cited ante, vol ii. 122
    
    
      
      
        Ante, vol ii. 207
    
   The cause stood continued nisi for the opinion of the Court, which was delivered at this term by

Parsons, C. J.

Wilcox having sued out a writ against his debtor returnable in the county of Worcester, and by the writ having attached the effects of his debtor in the hands of Mills, an inhabitant of another county, he being the only trustee summoned, the plaintiff recovered judgment * for his debt, arid had [ * 220 ] execution awarded against the effects of his debtor in the hands of Mills. The execution being returned unsatisfied, Wilcox sues this scire facias against Mills, to have execution against his own body, goods, and estate, to the value of the effects attached. To the scire facias, Mills pleads, in abatement, that he is the only trustee, who was summoned by the original writ, and that he was not an inhabitant of the county of Worcester, where the writ was returned, but of the county of Hampshire. To this plea there is a demurrer and joinder.

Mills, to support his plea, relies on the express words of the statute, that when all the trustees live in one county, the writ shall be returnable in that county.

If Mills had appeared to the original writ, and moved to stay all proceedings against him as trustee, or if he had prayed judgment whether he should be holden to answer, he would have been discharged as of course, and he would have been entitled to his legal costs, and perhaps to such further costs as would compensate him for his time and expenses, within the equity of the third section of the statute; because it would appear that he was not holden to answer as trustee to the plaintiff’s writ. But he lies by, until after execution is awarded against the effects of the debtor in his hands; and he now pleads these matters in abatement of the scire facias.

It is a very reasonable rule of law, that a scire facias to have execution must follow the original judgment, and that the defendant can plead nothing to the scire facias, which he might have pleaded on the original writ. On these principles, the defendant now comes too late, and his plea cannot avail him. He must submit to an examination, and he cannot be charged beyond the value of the effects he confesses to have had, when the original writ was served. But if it appears, on his examination, that he had no effects, he will not in that case be adjudged to pay any costs, but shall recover costs, because he is not resident in the county where the writ was re turned.

Judgment must be rendered, that the plea is bad, and that the said Mills answer further, &c.  