The question raised here is as to the validity of the service of two former writs against Aldrich as principal, and Faulkner as trustee, on one of which judgment was rendered, and the money paid in discharge thereof by the trustee. Unless this prior attachment by the trustee process can be treated as voidable by a subsequent attaching creditor, the trustee must be discharged as having no credits or effects of Aldrich in his hands.
Under our decisions- in Downs v. Fuller, 2 Met. 135, and Leonard v. Bryant, 11 Met. 370, a judgment may be impeached by such subsequent creditor, without, in the first instance, suing out a writ of error to vacate such judgment. This is so held, because the subsequent attaching creditor is not a party or privy to the judgment in any such sense as to entitle him to sue out a writ of error to reverse it.
It is to be borne in mind that the precise question here is, whether the trustee is to be again charged for the funds in his hands, after having paid over the same upon a judgment against his principal, in an action in which he was summoned as trustee. Was there enough on the face of the proceedings to justify such payment; or was he bound to go beyond the return of the officer, and inquire as to the existence of other facts ? We think he was not bound so to inquire, and if upon the face of the return of the officer a due service appears to have been made upon the principal, and there is no other objection to the validity of the proceedings than that of want of service upon the principal, it is a sufficient justification for the trustee, and he may safely pay over the money in his hands. Morrison v. New Bedford Institution for Savings, 7 Gray, 269, is directly to this point.
Without expressing any opinion as to the effect that would result from proof of the facts, alleged by the plaintiff in the present suit to have existed, that Aldrich had a last and usual place of abode in this commonwealth at the time of the service of the writ, if a writ of error were brought by the principal defendant against the plaintiff in that suit; it is enough to say *53that the return made by the officer was sufficient to protect the trustee, provided the subsequent proceedings were conformable to the provisions of the Rev. Sts. c. 92, § 3, for cases where the defendant was not an inhabitant of or resident within the State at the time of the service, and a continuance of the action was had, and due notice ordered and given. Assuming those to have been in conformity with the statute, the trustee may rely upon such former judgment as a justification for paying over on such judgment the money of the principal in his hands.
Trustee discharged