The case of Blaisdell v. Ladd, 14 N.H. 129, seems to be an authority quite in point that this plaintiff; in his individual capacity, cannot have judgment against himself as trustee in the capacity of administrator of the estate of Alpheus B. Hoag. The plaintiff's counsel endeavor to distinguish the two cases on the ground that in Blaisdell v. Ladd the objection was taken by a subsequent attaching creditor. I cannot see, however, that this makes any difference; and whether it does or not, the circumstance was not alluded to by the court, the decision being based upon the general proposition that one cannot be both plaintiff and defendant in the same suit. It is said, further, that Blaisdell v. Ladd ought not to be followed because the trustee process being a proceeding in rem, the substance of the matter is that the trustee here is not this plaintiff, but the estate of Alpheus B. Hoag, and therefore the general rule upon which that case was decided does not properly apply. I cannot see the force of this suggestion. On the contrary, it seems to me the fact, that one of the two adverse interests which the plaintiff is attempting to represent in the same proceeding at the same time is a trust, furnishes a strong additional reason why the rule should be applied. As administrator, his interest and duty lie in the direction of reducing and disallowing claims presented against the estate; — if he could be permitted in this way to secure a private claim of his own against third persons of doubtful responsibility, his individual interest would lie strongly in the opposite direction. This is a temptation into which no administrator ought ever to be led.
The trustee cannot be held, but I am of opinion that the motion to dismiss the action must be denied. It is to be assumed that service of the writ was made upon the principal defendant according to the requirement of the statute in such cases. The discharge of a trustee has not the effect to invalidate such service upon the principal defendant.
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