73 Mass. 269 | Mass. | 1856
The Rev. Sts. c. 109, § 47, enact in direct terms that “ the judgment against any person as a trustee shall acquit and discharge him from all demands by the principal defendant, or his executors or administrators, for all goods, effects and credits paid, delivered or accounted for by the trustee by force of such judgment.” The demand of the plaintiff in this action is for a credit which the defendants allege they have paid and accounted for under a trustee process, in which this plaintiff was the principal defendant, and in which the present defendants were summoned as his trustees.
The only further inquiry is, whether there was such a judgment, and payment thereon by the present defendants. The payment by the trustees upon such judgment is not denied; but it is said that judgment was invalid and insufficient, for want of proper service upon the principal defendant.
It is admitted that the case was within the general jurisdiction of the court, and that the parties were capable of suing and being sued; and the only objection taken to the judgment is the want of proper service upon the defendant in that action, he at that time, as it is said, residing in Lowell in the county of Middlesex. But the writ described him as residing in New Bedford, and the service purported to have been made upon him within the county of Bristol, by leaving at his last and usual place of abode a true and attested copy of the writ. And the writ was duly served upon the trustees.
The judgment is on its face therefore a valid judgment. There were proper parties, and apparently a proper service. In such case, the judgment cannot be treated, by a party against whom it was rendered, as a nullity ; but he must resort for his remedy to his writ of error or review, as he may find expedient, if in fact he was not a resident of New Bedford, and no legal service was made.
This judgment, in its present state, is certainly a good defence for the trustees. Whether, if a reversal be had of the judgment upon a writ of error against the plaintiff in the former suit, it will have any effect upon the right of the trustees, it is not necessary now to determine. Exceptions overruled.
