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The opinion of the court was delivered by

Williams, Ch. J.

This case comes before us on two exceptions. The first is to the decision of the court overruling the defendant’s-motion to dismiss. The court decided that the motion was out of time, according to the rules of the court. This decision of the court, on the construction of *122their rules, is not a subject to be here discussed. It is also further contended that the statute requires that the cause should be dismissed. If so, as the rules of the court could not contravene the law of the state, it is a proper subject of exception to be heard in this court. The statute, directing where suits are to be brought, when plaintiff and defendant are inhabitants of the state, declares, that, if otherwise brought, the writ, on motion, shall abate. The motion, however, is to be considered as a dilatory plea, and subject to the rules applicable to dilatory pleas. The statute, in relation to joining, landlords and tenants, has the same expression, that, if,they are not joined, the action, on motion, shall be abated. It has always been held that this non-joinder must be pleaded in abatement, and could not be taken advantage of after a plea of the general issue, or a continuance. On the merits of the motion, itis tobe observed, that,in this suit, as in all others, the party complaining is the plaintiff, and the one defending is the defendant. The trustee is neither a plaintiff nor a defendant in this suit. The residence of the parties determines where the action is to be brought. When both are inhabitants of the state, it must be brought in the county where the plaintiff or defendant resides. When the defendant is not an inhabitant of the state, it may be brought in any county. If the plaintiff, defendant and several trustees are all inhabitants of the state, though residing in different counties, it could hardly be contended that a suit could be brought in any of the counties where the trustees, or either of them, resided, and not in the county where both of the parties litigant, plaintiff and defendant, or either of them, resided. The proceeding against the trustee is only to attach property in action. His residence cannot be taken notice of in determining where the suit is to be brought. This principle was recognized, in the circuit court, where it was considered that an action, brought by a plaintiff, citizen of this state, against a defendant, citizen of Massachusetts, although several citi-of this state were summoned as trustees, was removeable from the state courts to the circuit court. The motion, in this case, discloses that neither the plaintiff, nor the defendant, Uzziel Clark, were inhabitants of this state, but resided in the state of New York. The suit was, therefore, properly brought in this county, notwithstanding the trustee resid*123ed m the county of Grand Isle, and the motion to dismiss J was properly overruled.

The other exception is founded on the decision of the court, that Thomas Clark, on his disclosure, was the’trustee of the defendant, Uzziel Clark. The statute makes all the goods, chattels, rights, or credits of the principal, debtor, in the hands of his trustee, liable for the debts of the debtor. Hence, if the trustee is indebted to the principal debtor, he is liable to be summoned as trustee, without regard to the nature of the indebtedness, whether by record, specialty, or simple contract. No exception is made whether a suit is depending in favor of the principal debtor, or whether payable or not, and we can make no exceptions, unless required so to do, to prevent injury to third persons, or, unless the spirit of the act requires it; or, unless we should find difficulties too great to be surmounted, by holding the trustee accountable. It surely should not depend on the fact whether the principal debtor, or his creditor, first commenced the suit against the trustee, to determine whether the trustee should be holden in the suit brought by the creditor. The security and safety of the trustee does not require this. The trustee must be in a situation that, if he is holden as trustee, at the suit of the creditor, he shall not be made liable to the principal debtor for the amount. Hence, if he has an opportunity to plead the pendency of the creditor’s suit against him, or payment of a judgment recovered thereon, he is in no danger. Where judgment is recovered by the creditor and collected of the trustee, the latter is, by the statute, acquitted and discharged from so much against all claims of the principal debtor.

If a suit is pending in the name of the principal debtor, against the trustee as defendant, and the latter is summoned as trustee, he may plead this as a temporary bar, and stay the proceedings until the suit of the creditor against him, as trustee, is determined, and this plea he may put in at any time while the cause between him and the principal debtor is open. In the case of Howell v. Freeman, 3 Mass. 121, the trustee was sued, a reference between him and the debt- or had been had, and the award made, though not accepted. He, therefore, had no opportunity of putting in a plea to protect himself, and was discharged. Had he had such *124opportunity of making a defence, he would have been considered as liable to this process in Massachusetts, notwith-síanc^nS a suit might have been commenced and pending, in the name of the principal debtor, at the time of the service U'ustee process. We are disposed to adopt the doctrine established in Massachusetts. It appears that the trustee was indebted to the principal debtor, on note, although a suit had been commenced thereon by the principal debtor, and was pending at the date of the service of the writ in this case. He had an opportunity to plead the same in bar, as a suspension of this suit. We are, therefore, of opinion that he has rights and credits of the principal debtor in his possession, and was properly adjudged to be trustee.

The judgment of county court is affirmed.

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