Columbus Insurance v. Eaton , 35 Me. 391 ( 1853 )

Hathaway, J.

— Assumpist on the defendants’ promissory note, not negotiable,, made by them payable to the plaintiffs. The defence was that the said Henry F. and Joseph E. Eaton had been adjudged the plaintiffs’ trustees, by the Court in Washington county, for the amount of the note, hi a joint action brought by John McAdams, Henry F. Eaton, Joseph E. Eaton and James G. .Kimball; and it appears that the defendants were summoned as the plaintiffs’ trustees in the suit, and were defaulted, and were adjudged trustees.

But the plaintiffs contend that the defendants cannot avail themselves of the proceedings ill the foreign attachment, because, they say, the two Eatons were both plaintiffs and trustees in that suit. This proposition would be correct if such were the facts presented by the report. But the case does not show that the Eatons, who were plaintiffs, and the Eatons, who were trustees, are the same persons ; there is no proof of their identity except that they had the same names, and place of residence. If they were the same persons, and the plaintiffs wished to avail themselves of that fact, they should have established it, by the necessary proof upon proper pleadings. Belknap & als. v. Gibbens & trustee, 13 Met. 471.

In the trustee process, “ The President and Directors of the Columbus Insurance Company,” who were the defendants, were described as of the State of Ohio ; and Henry F. Eaton and Joseph E. Eaton, two of the plaintiffs in that process, and Henry F. Eaton and Joseph E. Eaton, who were summoned as, and adjudged, trustees therein, were described as of St. Stephens in the Province of New Brunswick.

The case docs not find that the insurance company appeared in, or answered to that suit. The Court had no jurisdiction over them, so as to render a judgment personally binding on them, or binding upon their property or credits in the Province of New Brunswick. Story’s Conflict of Laws, § 549.

In Lovejoy v. Albee, 33 Maine, 414, the Court held that § 12 of c. 119, of the It. S., has reference to a case in which this Court has jurisdiction of the suit, between the principal parties; but the Court did not obtain such jurisdiction in the process of foreign attachment against the Eatons, as the plaintiffs’ trustees, and according to the decision in Lovejoy v. Albee, the judgment charging them as such, was “merely void.”

It is unnecessary to consider the other questions presented in the case, and, as agreed by the parties, a default must be entered.

Shepley, C. J., Tenney, Rice and Appleton, J. J., concurred.