
    Joshua Gage versus Barzillai Gannet and Others.
    In an action by the county treasurer on a bond given by the clerk of the Sessions, conditioned to pay the sums received from innholders for their licenses, the Court refused to abate the writ ex officio, after an appearance in the court below; because it did not appear, on the face of the record, that the inhabitants .of the county were directly interested.
    This was an action of debt, brought by the plaintiff, as treasurer of the county of Kennebeck, upon a bond given to his predecessor in that office, by the defendant Gannet, as principal, and the other defendants as his sureties, conditioned that the said Gannet, as clerk of the Court of General Sessions of the.Peace, should account for on oath, and pay to the county treasurer, from time to time, the sums paid by innholders for their licenses, pursuant to the statute of 1795, c. 80, <§, 2.
    
    
      Mellen, for the defendants,
    moved the Court to abate the writ ex officio, the suit appearing to be instituted solely for the benefit of the inhabitants of the county, of which all the judges and juiors in the Common Pleas where the action was commenced constitute a part. And he cited the cases of The Inhabitants of the County of Lincoln vs. Prince, 
       and Hawkes Al. vs. The Inhabitants of the County of Kennebeck, 
       in support of the motion. The first of these cases agreed with the case at bar, except that here the county treasurer was the nominal plaintiff, although the county was alone interested ; and in the last case the county [ *177 ] were * defendants instead of plaintiffs. The statute of 1809, c. 127, <§> 4, directs that any local or transitory action, in which the inhabitants of a county are plaintiffs, may bo brought in the county where the defendant lives, unless he be an inhabitant of the same county, in which case the action may be commenced and prosecuted in either of the adjoining counties. By this it should seem to be the intention of the legislature that such an action should in no case be brought in the county, the inhabitants of which are plaintiffs, as they virtually are here.
    
      Wilde for the plaintiff.
    
      
      I) 2 Mass. Rep. 544.
    
    
      
      
        7 Mass. Rep. 461
    
   By the Court.

It does not appear, on the face of the record before us, that the county is directly interested. But the defendants have waived this exception, by appearing and pleading to the action in the court below. It is true that in Prince’s case there was also an appearance for the defendant; but there the defect of jurisdiction was apparent on the face of the record,

Motion overruled. 
      
      
         [Vide Pearce vs. Atwood, 13 Mass. Rep. 324. — Commonwealth vs. Ryan, 5 Mass. Rep. 90. — Brown vs. Inhab. Somerset, 11 Mass. Rep. 221. — Boston vs. Tileston 11 Mass. Rep. 468. — Commonwealth vs. Worcester, 3 Pick. 464. — Ed.]
     