
    Benjamin Jacobs and Another versus Gilbert Mellen, and Robert Safford, John Wheeler, and Lusher Gay, his Trustees.
    Where the name of a trustee is collusively inserted in a process of foreign attach-' ment, for the purpose of giving jurisdiction to the Court of Common Pleas in the county where such fictitious trustee dwells, the principal defendant may plead this matter in abatement.
    This was an action of assumpsit, commenced at the Court of Common Pleas in Boston, April term, 1816. The plaintiffs, and Robert Sáfford, who was summoned as one of the trustees, are described in the writ as of Boston; the defendant Mellen is named of Keene, in the state of New Hampshire; and the other two trustees, Wheeler If Gay, are said to be of Cambridge, in the county of Middlesex. The three trustees were duly summoned ; but there was no other service on the defendant.
    The defendant Mellen pleaded, in abatement, that Safford, at the time of the service of the writ, and long before and after, had not in his hands any goods, effects, or credits of the defendant; that the plaintiffs, at the time of the purchase and service of their writ, well knew this fact, but inserted the name of Safford as a trustee collusively, for the purpose of giving jurisdiction to the court in Boston; — wherefore, as the other two supposed trustees lived in Middlesex, the writ ought to have been brought in that county, &c. This plea appears to have been filed at the said April term.
    No replication was then made to the plea; but, at the ensuing term in July, the plaintiffs had leave to amend the writ, by striking out the name of Safford, as one of the trustees; and at the October term following, they replied that, by leave of the court, obtained at the said July term, they had so amended their writ, and struck out the name of Safford, and concluded with an offer to try it by the record.
    
      * The defendant rejoined; that the plaintiffs did not so amend the writ at the said July term, and prayed that the record might be inspected, &c.
    The record contained other matter, not bearing upon the point, afterwards decided by the Court here.
    
      Williams, for the defendant,
    moved that the writ should now be abated, or the action dismissed, on the ground that all the trustees now named in the process were inhabitants of the county of Middlesex, and there had been no service on Mellen, the principal defendant. 
    
    
      Ward, for the plaintiffs,
    contended that, the defendant living in New Hampshire, and the plaintiffs in this county, the action was well brought in this county, so far as respected those parties. As to the fact that none of the trustees lived in this county, the law which obliged the plaintiffs to bring their action in the county where some of the trustees reside, was made only for the convenience or benefit of the trustees; and none but one of the trustees, summoned out of his county, could take advantage of it. If they waive it, it is not for the defendant to make the objection, since he has no inconvenience from it. Here the trustees came in from Middlesex and made their disclosure, without taking the exception. In the case of Wilcox vs. Mills, 
       the default of the trustee improperly summoned was held sufficient to cure the defect; and his voluntary appearance and submitting to examination is still stronger.
    The plea, to avail, should have been made by Safford. The jurisdiction was unexceptionable, as it respected Mellen. If Safford had not been inserted, the action must have been sustained, unless the other trustees had taken the exception. The proceedings "now are as if his name had never been in them;-leave to strike out being, to all intents, equal to an actual striking out. Matter in abatement as to one, cannot be pleaded by another, party. 
    
    Williams, in reply.
    The practice of inserting fictitious trustees has been severely censured by this Court.  The defendant has an interest in the question, * as the expense of the service will be charged to him, in case of a recovery against him; and, further, should the other trustees be discharged upon their disclosure, as there will have been no service on the defendant, the action must be dismissed for that cause.
    
      
      5 Mass Rep. 201, Davis vs. Marston & Trustee.
      
    
    
      
      
         4 Mass Rep. 218
    
    
      
      
        Lutw. 36.-8 Co. 159.
    
    
      
       4 Mass. Rep. 81, Barker vs. Taber & Al. & Trustees.
    
   Per Curiam.

We have not found it necessary to examine the record, to ascertain whether there was any thing peculiar in the order for the amendment, as suggested by the defendant, or at what time the amendment was made; because, in any event, the writ must be abated.

If.the name of Safford, as one of the trustees, was properly struck out, the writ must be considered in the same light as if his name had never been introduced; and, in that case, the Court must have abated the writ ex officio. The statute is peremptory, that, when all the trustees dwell in one county, the writ shall be made returnable there. On the other hand, if Safford is still to be considered as one of the trustees, then the replication is disproved.

We have no doubt that it is competent to the defendant to take this exception, and to plead it in abatement of the writ. It has been long since well settled, that a trustee, when summoned to appear out of his own county, may make such a plea, as to the supposed trustees who dwell in the county where the writ is returnable. Wheeler Of Gay, in this case, might have pleaded this matter; and, if not denied, it would have abated the writ.

But the defendant, if he pleads in abatement, must, by our statute, file his plea at the first term, and before the jury is impanelled. At that time this defendant might not know whether Wheeler 8f Gay would plead in abatement or not, nor whether they would be finally adjudged trustees or not. If, therefore, he were not allowed to make this plea, it would depend on the will of the supposed trustees, whether there should be a judgment against him or not. If he should rely on their taking the exception, and should therefore neglect to appear, he would be defaulted ; and the trustees, by * waiving the exception, might make the judgment conclusive against him.

If, on the other hand, the defendant should apprehend that they would not take the exception, and' should therefore plead to the action, he would be concluded, by force of the statute of 1798, c. 5, although it should afterwards appear that there had been no sufficient service of the writ. The consequence would be, that, in every case where the defendant was not willing to be defaulted, and to suffer judgment against him, he must plead to the action, and so make the writ good, although the service was wholly insufficient.

If Wheeler fy Gay aloné had been summoned as trustees, the writ would have been abated at the motion of the defendant, or of any one as amicus curia; because the defect would be apparent on the face of the writ. The defect is not less • fatal when the name of another supposed trustee is inserted, for the purpose of evading the statute; the plaintiff well knowing that he has no effects of the principal. Such an attempt to evade the statute would be wholly ineffectual; and the writ would be considered as if the name of the fictitious trustee had never been inserted.

But these facts cannot be made to appear without a plea; because the plaintiff must have opportunity to traverse them." Then it necessarily follows that the defendant may show the defect in the writ and service by a plea, when it does not appear upon the face of the proceedings; for the same reason, and with the same effect, as he may point it out to the Court, and take advantage of it, when apparent in the writ.

It was said that the defendant, in this case, could not object to the jurisdiction of the court in Boston; because, as to him, the action was well brought in the county where the plaintiffs lived. But the objection, as it lies in his mouth, is not that the court has no jurisdiction, but that there has been no legal service of the writ. The service on Safford is avoided by the facts pleaded; the service on Wheeler fy Gay is prohibited * by the statute ; so that, in effect, there is no estate of property of the defendant attached on the writ; and it appears, by the return, that no other service of the writ was made or attempted. This brings the case within that of Gardner vs. Barker &f Al. 12 Mass. Rep. 36.

Writ abated.  