
    The President, Directors, and Company, of the Hallowell and Augusta Bank, incorporated June 23, 1812, versus Samuel Howard.
    Two corporations having the same name, the sheriff who had an execution against one of them, and served it on property of the other, was holden liable in trespass.
    Trespass for breaking and entering the close of the plaintiffs, being the building where their banking business * is transacted, and taking and carrying away 1000 Spanish milled dollars, the property of the plaintiffs.
    Trial was had upon the general issue before Thatcher, J., at the last October term in this county. It appeared in evidence that one Nathan Bond, on the 28th of February, 1815, sued out a writ of attach ment against “ The President, Directors, and Company, of the Hallowell and Augusta Bank,” returnable to the Boston Court of Common Pleas at the following May term, for the recovery of the amount of certain bank notes issued prior to the 1st day of October, 1812, being bills of the Hallowell and Augusto"Bank, incorporated March, 6, 1804. This writ was delivered to the defendant, sheriff of the county of Kennebeck, for service: the agent for the creditor, supposing it was intended to be served on the former corporation of the same name, gave directions to the defendant accordingly. The writ was served on the 8th of March, 1815, by giving an attested copy thereof to “ the cashier of the old bank,” who still held the books of that corporation. He had also been the cashier of the plaintiffs; but at the time of the service of the said writ, and for a month before, John Merrick, Esq., had been the cashier of the plaintiffs ; the business of the two corporations being transacted at different places. The deputy sheriff who served the writ testified that he delivered the copy to J. Dimmer.
    
    The said J. Dimmer had been a large stockholder in the plaintiffs’ bank, but prior to the service of the said writ he had transferred the greater part of his shares, and his agent had sold the remaining shares, but the transfer of these was not entered in the books of the bank until a month after the said service.
    The said Bond having recovered judgment in his said action, by the default of the defendants therein, for the sum of 550 dollars 44 cents, delivered his execution to the defendant, with directions to levy the same on the plaintiffs. He accordingly entered the plaintiffs’ bank, and took so much of their money as was sufficient to satisfy the said execution, of which he made a due return.
    * If, upon the facts, the Court should be of opinion that the plaintiffs were entitled to recover, judgment was to be rendered on the verdict returned for them; otherwise they were to become nonsuit.
    
      Williams, for the defendant.
    The action of Bond was, in fact, instituted against the present plaintiffs, the new corporation; and the writ was well served upon them by delivering an attested copy of it to Dimmer, who at the time appeared by the books to be “ a principal member of the body corporate.”  The plaintiffs having thus been duly summoned, and having by their default confessed the action, the execution was properly issued against them, and legally satisfied from their effects. If they would recover back the money thus lawfully taken, they must first vacate the judgment which has been rendered against them.
    
      Mellen and Bond for the plaintiffs.
    
      
      
        Stat. 1785, c. 75, § 8.
    
   Parker, C. J.,

delivered the opinion of the Court. It being apparent that the legislature has created two distinct and independent corporations by one and the same name, viz., “ The President, Directors, and Company, of the Hallowell and Augusta Bank,” it is clear that one is no more answerable for the debts of the other, than an individual would be for the debts of another who happened to have the same name and personal description.

It follows that an execution or precept intended for one, if served upon the other, is illegally served ; and the officer making the service, and the creditor directing it, are trespassers,

The ignorance of the officer does not excuse him ; for in such a case he is not bound to serve the precept upon either, without the express direction of the creditor, and an indemnifying engagement from him.

The difficulty in such cases is, to ascertain whether the judgment was or was not, in fact, rendered against the person who is taken in execution; for if it was, although the person was mistaken, yet the officer would be justified.

In the case before us, it does not appear of record * which of two corporations the judgment was rendered against, by any other circumstance than that the demand, which was the ground of the action, existed before the incorporation of the present plaintiffs. But by paroi evidence it clearly appears that the now plaintiffs were not defendants in the suit on which the judgment was rendered, and therefore that execution was not to be issued against them.

By the return of the officer on the writ, it appears that he summoned the cashier of the bank; and by extrinsic evidence it appears that Dimmer, who was then the cashier of the old bank, was the person summoned. This evidence was admissible, because the fact could not be ascertained from the record; and as the officer had the same means of ascertaining the party intended by his precept, when he levied the execution, as when he served the original writ, he must be considered as illegally levying the execution upon the property of the present plaintiffs.

The circumstance that Dummer was a member of the new cor- * poration, as well as cashier of the old one, is of no importance ; as the officer summoned him in his character of cashier, which was applicable only to his relation to the old bank.

Judgment on the verdict. 
      
       [ Commonwealth va. Kennard & Al. 8 Pick. 133. — Ed ]
     