Bowler v. European & North American Railway Co.

This is an action of foreign attachment. It is claimed that there has been an alteration of the writ. The names of Maxñeld and Smith and Azro Jones were originally inserted in the writ as trustees. Service was made on Maxñeld and Smith, but not on Jones; and service was then made on the principal defendants. Afterwards, Azro Jones and Azro H. Jones being the same person, the letter H. was inserted in Jones’ name, and service then made on him and renewed on the principal defendants. We can see no wrong in this. The plaintiff, at the most, did no more than to attempt to avail himself of the privilege of inserting in his writ the name of a new trustee, as allowed by § 6, c. 86, R. S. His effort, however, proved ineffectual. The name must be inserted “ before ” the process is served on the principal and not after. It does not help the matter that the service was afterwards renewed on the principal. It may *398be renewed upon the principal after “ further ” service on any trustee. But here the service on Jones was an original and not a “ further ” service, because there was no service on him before. Nor could the writ be regarded as a new writ from the date of service on Jones, because there was no after service on Maxfield or Smith. In any view, .there was no legal service on Jones, nor does the plaintiff claim to hold him. All this seems to be immaterial so far as the trustee Maxfield is concerned. He has no connection with Jones, and discloses only an individual liability of his own.

Maxfield’s disclosure shows that he was indebted for freight transportation from Houlton to Bangor; that the transportation was performed in part by the defendant corporation and in part by another company over another road, the roads being so connected as to permit a continuous passage of the cars between the two places; that it was the custom of the defendant company to collect the whole freight due for transportation from Houlton to' Bangor, accounting to the other railroad company according to the' portion of the distance carried by them, for their share of the same. There can be no doubt that Maxfield cannet be charged for that portion of the freight which was earned by the New Brunswick & Canada Railroad Company. Even if it had been collected by the E. & N. A. R. Company, it would have been in their hands, as agents and trustees, as the property of the other road. Gould v. Newburyport Railroad Co., 14 Gray, 472, Chapin v. Conn. R. Railroad, 16 Gray, 69. Hartan v. Eastern Railroad, 114 Mass. 44. Williams v. Williams, 23 Maine, 17.

The other question raised is settled in another case, argued with this, where a similar state of facts is presented. Emerson v. E. & N. A. Railway, ante, p. 387.

Trustee charged.