Dole v. Boutwell ( 1861 )

Dewey, J.

The judgment rendered in the suit of Page and others against Dole, and Boutwell as trustee, is available to Bout-well as a sufficient authority for the payment of the sum for which he was adjudged trustee. Without expressing any opinion upon the question whether that judgment might have been reversed on a writ of error, if the defendant therein had taken proper measures for the purpose, nothing of that kind having taken place, the trustee may avail himself of the same as an existing judgment.

Under the decisions of this court, it would seem to have been competent for either the trustee or the defendant to avail himself, by proper proceedings instituted at the first term after the entry of the action, of the objection to the action, on the ground that it was made returnable in Middlesex instead of Essex, where the sole trustee lived. This objection was not one, however, that was fatal to the jurisdiction of the court sitting for Middlesex, in the future stages of the case, or one that might not be cured by the appearance and pleading of the parties thereto, although a mere appearance to object to the jurisdiction would not operate as a waiver of the objection. These positions are authorized by the case of Brown v. Webber, 6 Cush. 560.

In the suit of Page and others against Dole, and Boutwell as trustee, the record does show that such objection was taken both by the defendant and by the trustee. As to the plea of the trustee raising the objection, before any action was had thereon, it was waived by a general appearance and answer of the trustee; and this, so far as he was concerned, cured the objection that the action was not made returnable in the county of Essex. The defendant in that action did not waive his plea, and subsequently, upon some ground not stated in the record, either for want of form or substance, upon demurrer to the plea, the same was overruled. From this judgment of the police court the defendant in the action took no appeal, as he might have done, but was defaulted, and suffered judgment to be rendered against himself; and execution thereupon was issued against the defendant, and against his credits and effects in the hands of Bout-well as his trustee.

This judgment cannot be treated as a nullity, but was in full force, no appeal having been taken in the case, and no attempt having been made to have the same reversed.

The indorsement upon the execution of the payment of the amount in the hands of Boutwell as trustee, by a promissory note accepted by the creditor, was a good payment by the trustee. The return of the officer sufficiently shows this payment, and to that amount the demand of the present plaintiff against Boutwell was legally discharged thereby.

The defendant is also entitled to an allowance of the sum paid to the use of the plaintiff by the payment of his order for $16.12 to a third person. This may properly be applied as a payment by the defendant in discharge of his indebtedness to the plaintiff. Exceptions overruled.