
    Scudder & al. versus Davis & al., and the Lewiston Water Power Company, their trustees.
    
    The provision of R. S. chap. 119, sect. 5, was not intended merely for the benefit of trustees, but may be pleaded in abatement by the principal defendant, in a trustee suit, wherein the only trustees are a corporation aggregate, having their established and usual place of business, and having held their last annual meeting, in a county other than that in which the suit is brought.
    On Report from Nisi Prius, Shepley, C. J. presiding.
    Assumpsit.
    
      The trustees come, and by their disclosures admit indebtedness to the principal defendants.
    The principal defendants filed a plea in abatement. This was followed by a replication and a rejoinder, upon which an issue to the county was taken. The ground of the claim to have the writ abated, was, that the suit is brought in the wrong county.
    After examining the testimony, the parties, withdrew the case from the jury, and submitted to the Court who are “ to enter such judgment as the rights of the parties may require.”
    
      J. Goodenow, for the plaintiffs.
    
      T. A. D. Fessenden, for the defendants.
   Howard, J., orally.

— The case is submitted for judgment as the rights of the parties may require. A consideration of the pleadings is therefore unnecessary. The evidence shows that the trustees have their established and usual place of business in the county of Lincoln, and there held their last annual meeting, and for several of the last years have usually held their meetings there.

The statute ch. 119, <§> 5, is imperative that, upon such facts the action should be brought in that county alone.

The plaintiffs however have contended that this provision of the statute was for the benefit of the trustees only, and may therefore be waived by them. But the language is unambiguous and clear. We have no choice but to give it effect as it reads.

As the action could not rightfully be commenced for this county, it cannot be maintained here.

Writ abated.  