62 N.H. 409 | N.H. | 1882
A subsequent attaching creditor is not admitted to defend a suit in the name of his debtor as a matter of right. When it is said, as it sometimes has been, that his admission is discretionary with the court (Reynolds v. Damrell,
A writ cannot be altered after service without leave of court. The alteration in this case was material. Without it, the plaintiffs upon the trial would have been obliged to prove the partnership and a promise by the firm. If it was made after service, and fraudulently made, it was a forgery. G. L., c. 276, s. 1; Commonwealth v. Mycall,
There is no reason why a plaintiff who fraudulently alters his writ should stand any better in respect to that instrument than a creditor who fraudulently alters his debtor's promissory note, and who, it is well settled, cannot recover upon the note itself, nor upon the original consideration for the note. Smith v. Mace,
What the effect of the alleged alterations, if made, would have upon the attachment, or whether, if made by leave of court, the attachment would be postponed to that of the subsequent attaching creditors, are questions not necessary to be considered, and upon which no opinion is expressed.
The subsequent attaching creditors moved to dismiss, and offered to show by evidence aliunde that the alleged alterations were made after the service of the writ. The evidence should have been received.
Exceptions sustained.
STANLEY, J., did not sit: the others concurred.