GARDNER US. BARKER & TRUSTEES. his partner was entitled to receive; and that is the ground of the present action. The case of Brigham vs. Eveleth (1) is a sufficient authority for this purpose, if authority be wanting. But we do not consider the preexisting partnership as in any degree affecting this demand of the plaintiff, the partner being dead, and the account be tween them having been settled. In this case, too, it is observable, that the objection is merely formal; for, by the appointment of auditors under an agreement of the parties, every advantage of the action of account has been enjoyed by the defendant, without the inconveniences to which that action is liable. † (1) 9 Mass. Rep. 538. Judgment on the verdict. The Court, in giving judgment, assume what the report of the case does not war. rant. The money was, as it should seem, paid by the plaintiff to the executor of his copartner on being threatened with a suit, while it remained doubtful whether it were due or not; and the action was brought before the copartnership accounts had been entirely adjusted. See note to Brigham vs. Eveleth, 9 Mass. Rep. 542, 3d ed. — Bovill vs. Hammond, 6 B. &. Cr. 151.. Holmes vs. Higgins, 1 B. & Cr. 74. Fromont vs. Coupland, 2 Bingh. 170.. - Smith vs. Barrow, 2 D. & E. 476. - Harvey vs. Crickett, 2 M. & Selw. 340.. Foster vs. Alanson, 2 D & E. 479.. Henley vs. Soper, 2 M. & R. 153.8 B. & Cr. 16. — Rackstraw vs. Imber, Holt, N. P. C. 368. —Robson vs. Curtis, 1 Stark N. P. C. 78. Coffee vs Bryan, 3 Bingh. 54. - [Fanning vs. Chadwick, 3 Pick 420 Collyer on Partnership, 152–4, and note -Williams & al. vs. Henshaw & al., 11 Pick 79. — ED.] JARED GARDNER versus JACOB BARKER AND TRUSTEES. Where an action was commenced against one, not being an inhabitant of, nor resident within, this Commonwealth, nor having any property therein to be attached, and certain supposed trustees of the defendant were summoned in the action, it was holden competent for the defendant to plead in abatement of the writ, that such supposed trustees were not his trustees, never having had any goods or estate of his in their hands or possession, and that no goods or estate of his had been attached in the suit; and the facts so pleaded being confessed by a demurrer to the plea, the writ was abated. THIS was an action of assumpsit, originally commenced in the Court of Common Pleas for the county of Nantucket, whence it came to this Court by appeal. In the writ, the defendant is named of the city of New York, and the plaintiff and the supposed trustees are called of Nantucket. *The sheriff returned [37] a service on all the trustees, and also on Benjamin Whitman, Esq., as the agent of Barker, the principal defendant. At the first terr. of the Common Pleas, the defendant pleaded, in abatement of the writ," that the several supposed trustees are not, and never were, the trustees of the said Jacob, never having had any GARDNER US. BARKER & TRUSTEES. goods, effects, or credits of him the said Jacob in their hands or possession; nor had any goods or estate of him, the said Jacob, been attached by virtue of the said writ," &c. To this plea in abatement the plaintiff demurred, assigning for cause, that the said trustees ought to have answered in court, whether they had any goods, effects, or credits of the said Jacob in their hands at the time of the service of the process upon them; and that the want of such goods, &c., could not be pleaded in` abatement by the said Jacob. Afterwards, at the same term, the several persons summoned as trustees came in and discharged themselves. The cause was argued by Davis (Solicitor-General), for the plaintiff, and Benjamin Whitman, for the defendant. The opinion of the Court was delivered by JACKSON, J. Two questions have been argued in this case, first, whether there has been such a service of the original writ as will hold the defendant to answer to the suit; and, secondly, if not, whether the defect sufficiently appears by the pleadings and the other parts of this record. As to the first, the defendant is not an inhabitant of this State, and there has been no actual service on him. The writ was served on Benjamin Whitman, Esq., as his agent; but such service is not sufficient in this case, unless some estate or effects of the defendant were attached. When an absent debtor has property here, it may be attached to answer his debt; and a judgment against him will be effectual here, so far as to bind the property within our jurisdiction; although, probably, no foreign tribunal would enforce such judgment against the defendant, if he had no notice of the suit, and no oppor tunity to defend against it. Our laws contain sundry pro[*38] visions to guard, as far as possible, the rights of the absent debtor; and, among others, it is required, that a summons should, in such case, be left with the tenant, agent, or attorney of the defendant; on the presumption, that, if he has any estate or effects here, they will be in the hands or under the care of some such agent, who is entitled to notice before they shall be taken out of his possession, and who may defend the rights of his principal, or give Lim notice of the suit, so that he may defend himself. The service on a supposed agent, therefore, in a case like the present, is only to be made when goods or estate of the absent defendant are attached. It is otherwise wholly ineffectual. It appears from the sheriff's return upon this writ, that no goods or estate of the defendant were attached, unless it were in the hands of the supposed trustees, or some one of them. The defendant has pleaded in abatement, that he had no goods, effects, or credits in their hands; and this fact, if it is well pleaded, is confessed by the GARDNER vs. BARKER & TRUSTEES. demurrer. The remaining question, therefore, is, whether this matter is well pleaded, so that the Court can see upon the whole record that there has been no sufficient service upon the defendant. By the statute of 1798, c. 5, it is enacted, that, when all the trustees are discharged, or the plaintiff discontinues against them, or whenever it shall appear from the record that there is not any trustee, the plaintiff shall not proceed against the principal; unless there shall have been such a service upon him as would authorize the Court to proceed in an action commenced in the common and ordinary mode of process; provided, however, that the defendant may, in such case, if he think proper, appear and take on himself the defence of the suit. It is contended, on the part of the plaintiff, that the question, whether the supposed trustees have any effects or not, can be tried and decided only on their own disclosure upon their examination in court; and, therefore, that the matter of this plea is not traversable, and cannot be pleaded by a defendant. * We have no doubt, that, when the trustees are all [*39] discharged, and it appears, on the inspection of the writ and the returns, that there has been no other sufficient service on the defendant, the writ may be abated or dismissed, without any such plea by the defendant. † But it does not follow that it may not also be pleaded, if needful for the security of the defendant, before the trustees have made their disclosure. If it could not be so pleaded, the statute might be constantly evaded. The plaintiff might summon one as trustee, who would agree to be defaulted; in which case it could never appear to the Court, in that suit, that he had no effects of the principal, unless it could be thus pleaded. If it be said, that the trustee may be compelled to appear and answer on scire facias, the answer is, that the original plaintiff may perhaps know that the supposed trustee has nothing, and may, therefore, omit to sue out a scire facias; and, even if the trustee were discharged on such process, still, it would be too late to aid the principal defendant in the original suit; as judgment must have been already rendered against him. But, without supposing any improper design or collusion, a person summoned as trustee may be defaulted; and if, in truth, he had no effects, all the same mischiefs would follow, and judgment would be rendered against the absent defendant, contrary to justice, and to the manifest intent of the statute. It is certain, that the defendant will, in many cases, be deprived of + Lawrence vs. Smith & al., 5 Mass. Rep 362. Tingley vs Bateman & Trustee, 10 Mass. Rep 343. — Jacobs vs. Mellen & Trustees, 14 Mass. Řep. 132. — Hawkes & al. vs Kennebec, 7 Mass. Rep. 461. Gage vs Gannett, & al., 10 Mess. Rep. 176.- Inhab. County of Lincoln vis. Prince, 2 Mass. Rep. 544 VOL. XII. 4 * 41 GARDNER vs. BARKER & TRUSTEES. the advantage intended to be secured to him by this statute, unless he is allowed thus to plead the defect and insufficiency of the service. His appearing to take this exception is not a waiver of the exception; (1) nor is it taking upon him the defence of the suit, within the proviso of the statute. It is, to show cause why he should not take upon him the defence. Nor is there any objection, from the general principles of pleading, to the matter of this plea. The service, as returned by [*40] the sheriff, is apparently good and sufficient. But, if the supposed trustees have no effects of the principal in their hands, so that no property of his is attached in the suit, the service is not sufficient. The question, whether they have any such effects, is not settled by the averment in the writ, nor by the return of the sheriff. It is, therefore, the proper subject of a plea. The defendant thus secures to himself the advantage intended by the statute, even though the supposed trusteee should, from negligence or collusion, be defaulted, and charged as trustee, when he has no effects. There is no hardship on the plaintiff, in holding him to answer to such a plea; as the defendant takes on him the burden of proving affirmatively that none of the persons summoned have any of his effects in their hands; and, if he do not prove this satisfactorily, the plaintiff will recover judgment. It may be added, that, as this is a plea to the writ only, it must, by our laws, be filed before it can be known whether the supposed trustees will appear; and, of course, if the defendant intends in all events to avail himself of the provisions of the statute, he must do it by plea. Therefore, although the facts stated in the plea in this case now appear to the Court to be true from other parts of the record, namely, from the disclosures of the trustees, and the judgment thereon; yet this is no objection to the plea, as the facts did not so appear at the time when the plea was filed; and it could not then be known that the trustees would ever make any disclosure in this suit. We are, therefore, of opinion, that the plea is good and sufficient, and that the writ be accordingly abated. † (1) 7 Mass. Rep. 29. Jacobs & al. vs. Mellen & Trustees, 15 Mass. Rep. 132. Tingley vs. Bateman & Trustee, 10 Mass. Rep. 343. - Guild vs Richardson, 6 Pick. 364. — Eaton vs. Whiting Pick. 484. 42 ALSOP vs. COIT. RICHARD ALSOP, JUN., versus DANIEL W. COIT. If an insurance, effected by an agent, pursuant to instructions from his principal, would have been void, no action lies for the principal against the agent for not procuring such insurance according to his instructions. THIS action was case upon a promise to procure insurance, auu was tried upon the general issue before the Chief Justice at the last November term in this county. * The vessel intended to be insured was bound on a [*41] voyage to St. Domingo, with letters of marque. She was owned by C. Coolidge & Co., before the contemplated voyage; but, with her cargo and outfits, was divided into ten shares, of which the plaintiff had agreed to take one share. The evidence of property in the plaintiff was contained in a certain certificate, signed by Coolidge & Co., formed on a letter from the plaintiff to them of his assent to take one share, and also the books of said Coolidge & Co., verified by their clerk, showing that the plaintiff had been charged with one tenth part of the value of the vessel and outfits. This evidence was objected to, it being admitted that Coolidge & Co. then had the interest, which they had before assigned to the plaintiff, in themselves, in consequence of the insolvency of the plaintiff. The plaintiff wrote to the defendant in New York, requesting him to procure insurance to the amount of $2500 on this vessel, &c., which letter was received by the defendant. The letter was dated at Middleton, in Connecticut, April 21st, 1813, and states, that the vessel would sail as soon as the frigates, "calculating to take advan tage of their protection,' ," there being then frigates in the harbour of Boston, destined for sea. The vessel had sailed on the 19th of April, and was captured on the 20th, the frigates not having sailed. There was no evidence that the plaintiff knew that the vessel had sailed, he not being in Boston. The jury were instructed, that this was in the nature of a representation, which was material; and that a policy of insurance, if effected according to the desire of the plaintiff in his letter of the 21st of April, would not have been binding on the underwriters; and upon this direction a verdict was returned for the defendant. If this direction was wrong, and the evidence above stated, of property in the plaintiff, was sufficient, the verdict was to be set aside: otherwise, judgment was to be entered on the verdict. The cause was briefly argued by Heard, for the plaintiff, and by Hubbard for the defendant. |