Barrows v. Rose

73 Mass. 282

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Shaw, C. J.

To an action brought by a physician residing out of the State, for medical attendance, against the defendant, described as of Dighton in this county, by a writ in which the name of a trustee is inserted, also described as of Dighton, the defendant pleaded that the alleged trustee is not and was not an inhabitant of or residing in the county of Bristol, but of Providence, R. 1. To this plea the plaintiff demurred, and the court of common pleas sustained the demurrer.

The court are of opinion that the demurrer was well taken and must be sustained. The fact pleaded, as matter of defence for the principal, was utterly immaterial; it affords no reason, if true, why the defendant should not answer. The defendant ,is alleged to be an inhabitant of Dighton in this county; this fact is not traversed. He was duly served with process; the court therefore have jurisdiction of the cause, whether the trustee is chargeable or not.

We have doubts whether this judgment upon a plea or answer in abatement is open to appeal; but as it has not been placed on that ground, we have not examined the point.

Demwrrer sustained.