
    Michael Murphy vs. S. A. Merrill.
    If a person summoned as trustee out of his own county, contrary to Rev. Sts. c. 109, § 7, does not appear, but is defaulted, he is liable to a scire facias in that county, especially if he do not move to dismiss the latter suit until after several terms of the court.
   Shaw, C. J.

On a writ of scire facias against a trustee, the defendant, after the lapse of several terms, moves that the writ be dismissed, on the ground that in the original writ, three trustees were named, all of whom were residents of Lawrence, in the county of Essex, and, therefore, that the court have no jurisdiction; the action being brought in the wrong county, contrary to Eev. Sts. c. 109, § 7. In a copy of the original writ furnished to us, it appears that two of the trustees named, are described as of Lowell, in this county; they do not appear to have been served with process, though they were formally defaulted. But, supposing they were all described as of Lawrence, in the county of Essex, and the defendant did not appear, but made default, it was decided in an early case, that he could not take advantage of the objection on scire facias afterwards brought against him as trustee. Wilcox v. Mills, 4 Mass. 218.

But there is another ground, quite decisive. The defendant has appeared in this court, the action has been continued several times, and it is now too late to make such a motion to dismiss, if otherwise it could avail. Where the court have jurisdiction of the parties and of the subject-matter, an objection that the action is brought in the wrong county is matter of abatement, to be pleaded, if the objection does not appear on the face of the record, otherwise, to be the subject of a motion to dismiss. In either case, it must be taken advantage of at the first term, or at a very early day. Submission to the jurisdiction, is a waiver of the objection. Brown v. Webber, 6 Cush. 560. The motion to dismiss, therefore, cannot be sustained.

If the defendant has not answered, he may be required to answer now; if, on his answer, it appears he has effects, he may be charged; if otherwise, discharged; and in either case, subject to the statute provisions in regard to costs, where a trustee is summoned out of his own county. Wilcox v. Mills, 4 Mass. 507.

R. B. Caver ley, for the defendant.

B. F. Butler, for the plaintiff.  