#### Loring G. Robbins *versus*Joseph B. Hill and Trustee.

Where a trustee process is continued two terms, pursuant to *St.*1794, *c.*65, § 2, upon the plaintiff's suggestion of the defendant’s being out of the Commonwealth, the defendant may file a plea in abatement within the first four days of the third term.

A writ indorsed, *“*A. B. by attorney," is not duly indorsed, within the requisitions of *St.*1784, c. 28, § 11.

Action of debt. The defendant Hill, at the time of issuing the writ, lived in the State of New York, and personal service was not made on him. The action was continued two terms on the plaintiff’s motion. At the third term the defendant appeared, and on the third day of the term he filed a plea in abatement, that the writ was not indorsed by the plaintiff by 'his Christian name and surname, or by his agent or attorney.

The plaintiff brought up the case on demurrer, reserving all his rights to object to the plea, and in this Court he objected *577to its being received ; which objection was overruled, and issue was joined on the plea.

Before the writ was served, it was indorsed in the handwriting of Byington, the attorney of record in the case, as follows : — “ Loring G. Robbins by Att’y.” Robbins was an inhabitant of this Commonwealth, at the time of bringing the action.

*Sept. 22d.*

C. *A. Dewey*and Byington, for the plaintiff,

contended, 1. That the plea in abatement was not filed in season. *Whiting*v. *Hollister, 2*Mass. R. 102 ; *Gilbert*v. *Nantucket*Bank, 5 Mass. R. *97.*

*2.*That the indorsement was sufficient, under Si. 1784, c. 28, § 11, which requires that original writs shall be indorsed “ by the plaintiff with his Christian and surname, if he is an inhabitant of this Commonwealth, or by his agent or attorney, being an inhabitant thereof.”* They said that this mode of indorsing writs had been in use in this county ever since the passing of the statute ; and they produced from the file in the clerk’s office, indorsements by judges *Dewey*and *Howe,*and by other members of the profession, and by each of the counsel for the defendant, made in the same way as that in the present case.

*Bishop*and Porter, for the defendant,

relied on *St.*1794, *c.*65, § 2, and *Rathbone*v. Rathbone, 4 Pick. 89, on the first point; and in regard to the second, on *Chapman*v. *Phillips,*3 Pick. 442 ; *Chadwick*v. *Upton,*8 Pick. 25 ; *St.*1784, c. 28, § 11.

The case was continued *nisi.*

*Sept. 28th*

*

 This provision nas been repealed by *St.*1833, c. 50, § 1.

*Per Curiam.*

The Court are of opinion that the plea in abatement was filed in due season. In *Rathbone*v. *Rathbone,*4 Pick. 89, it was decided, that in a common case, where the defendant is out of the Commonwealth at the return term, and the cause is for that account continued pursuant to the statute, the defendant may file a plea m abatement at the second term, being the first at which he is required by law to appear, and that the statute continuance is in the nature of a special imparlance, which saves all the defendant’s rights.

*578The reason of that decision applies to the present case. By the statute usually called the trustee law, *St.*1794, c. 65, § *2,*it is provided, that if the principal defendant shall be absent from the Commonwealth, when such writ shall be served, the court shall continue the action two terms. This was a trustee suit, and comes within this provision. The consequence is, that the defendant had, by the statute, until the third term, to appear, and that a plea in abatement at that term was in season.

Upon the merits of the plea, the Court are of opinion, that the indorsement of the writ was not conformable to the requisitions of the statute, and that the plea in abatement is good.1

*Writ abated.*

1

 See *Clark*v. *Painey*11 Pick. (2d edit-) 69 and note.