delivered the opinion of the Court.
By the act, regulating judicial process and proceedings, Stat. 1821, eh. 59, sec. 9, it is provided, that when the plaintiff and defendant both live within the State, all personal or transitory actions shall be brought in the county where one of the parties lives. As in the case before us, all the parties live within the State, the plaintiff being an inhabitant of this county, the action is rightfully brought here, unless it is controlled by the act concerning foreign attachment, Stat. 1821, ch. 61.. By the first section of the statute last cited, after prescribing the mode in which the process of foreign attachment shall be served, both upon the principal and the trustees, it is provided that when the trustees, named in such writ, do all dwell in one county, such writ shall be made returnable in the county where all the trustees dwell. As the clause which immediately precedes this provision in the same section, directs the manner and effect of service, where the principal has not been an inhabitant or resident within the State, the trustees only residing therein, it has been insisted that the term, “such writ,” which follows, must be limited to cases where the principal has not been a resident within the State. But upon an examination of the whole section, we are satisfied that the meaning of this term cannot be so restricted, upon a just construction. It is a term repeatedly used in the section ; and is *407manifestly intended to refer generally to the process provided for in the statute. The provision in question was introduced for the benefit of the trustees, whom it was deemed unreasonable to call out of their proper county; as there was no privity between them and the attaching creditor; and they had violated no obligations to him. Whether the principal resided within or without the State, there would be the same reason for extending this indulgence to the trustees.
It is further urged, that this provision is modified by the fifth section of the same statute. This section allows costs to the trustees, where the attaching creditor does not support his action against the principal; but authorizes him to proceed against the principal, notwithstanding he may have discontinued his suit against the trustees, or they may have been discharged by the court, after having submitted themselves to an examination under oath. But as in certain cases, in virtue of the first section, service might be made upon the trustees alone, the fifth section further prescribes that where the plaintiff shall have discontinued his suit ^gainst the supposed trustees, or they may have been otherwise discharged, he shall not prosecute his suit against the principal, unless there shall have been sucb service of the original writ upon him, as would authorize the court to proceed against him, in an action brought and commenced, in the common and ordinary mode of process. Such service having been made upon the principal in the ease under consideration, the plaintiff claims a right to sustain his process under this provision. But we are of opinion that this construction cannot prevail. This part of the section was plainly introduced, for the sole purpose of protecting the principal from having judgment rendered against him, where he had no notice of the suit, and was not represented or defended by any one, whom he had entrusted with his property. Where a statute prescribes in what county a writ shall be returned, if it is made returnable elsewhere, it is abateable. Although the plaintiff may discontinue his suit against the trustees, the character of the process remains, and if made returnable to a wrong county, may be abated, whatever course the plaintiff may subsequently pursue. The authorities, cited by the counsel for the defendant, fully maintain this position.
*408It is lastly urged, that the provision upon which the defendant relies, was introduced for the benefit of the trustees, and that they alone can take advantage of it. This point was otherwise adjudged in the case of Jacobs & al. v. Mellen & tr. Indeed it is there stated that if it had appeared, by the writ in that case, that all the trustees lived in a county other than that where it is made returnable, the court must, ex officio, have abated the writ. We are all of opinion that the plea in abatement is good, and that judgment must accordingly be rendered for the defendant.
Judgment for the defendant for costs.