
    Joseph Winthrop versus Moses Carlton, Jun.
    It is no cause to abate a writ, that the defendant has been sued as the trustee of the plaintiff, and that the process is still pending ; but it is ground for a continuance while the process is pending; and during such continuances the plaintiff may not tax costs for travel and attendance.
    The declaration in this case was in assumpsit, and contained the usual money counts.
    The defendant pleaded in abatement, that he had, before the service of the writ in this action upon him, been summoned as trustee of the plaintiff, at the suit of one Ahiel Wood, Jun., for a just demand of the said Wood, and the said process was still pending in the Supreme Judicial Court for the county of Lincoln, and he the said Carlton, undischarged thereof; but still remains liable upon the same suit for all the goods, effects, and credits of the plaintiff in his, the said Carlton’s hands, and possession at the time of the service of the said Wood’s process upon him ; and he avers that all and every the causes and rights of action contained in the plaintiff’s declaration in this action, which are or at any time heretofore have been in the plaintiff, were in him at the time of the said service; nor has he, the said Carlton, since that time, become indebted in any way to the plaintiff, nor have any of the plaintiff’s goods, effects, or credits come to his hands since that time ; all which he is ready to verify; wherefore he prays judgment, if he ought to be held to answer to the plaintiff’s writ and declaration, and that the same may abate.
    To this plea the plaintiff demurred, and the defendant joined in demurrer.
   * By the Court.

The plea discloses no sufficient cause of abating the writ. Non constat that judgment will be rendered against the defendant in the other suit. That process depending may well support a motion for a continuance of this action; and while the action shall stand continued for such cause, it will not be proper for the plaintiff to tax his costs of travel and attendance.

G. Sullivan for the plaintiff.

J. E. Smith for the defendant.  