Smith v. Brown

14 N.H. 67 | Superior Court of New Hampshire | 1843

Parker, C. J.

The amendment allowed in the action by Perley, and which consisted in striking out the name of one of the two originally summoned as defendants, was lawfully made under the provisions of our statute law. The amendment could not operate to the prejudice of the receipt-er ; and, as in cases of bail and attachments, no amendment which does not tend to increase the liability of the defendant will discharge the receipter from his responsibilities. This was not such an amendment. 5 Pick. R. 303, Ball vs. Claflin; 8 Pick. R. 412, Miller vs. Clark; 14 Pick. R. 177, Seeley vs. Brown; same 223, Lord vs. Clark; 19 Pick. 117, Whitwell vs. Brigham; 18 Pick. 238, 243, Adams Bank vs. Anthony. On the contrary, its effect was rather to lessen that liability, and so no one was injured, unless this receipter was in some way entitled to have the action remain in a situation in which it could not be prosecuted to judgment; which he clearly was not.

The receipter was not discharged from his liability by the discharge of Brown under the bankrupt act of 1841. To show this, it is not necessary, at the present time, to go into the question whether a mere attachment is or is not a lien within the proviso of the second section of that act. Whether an attachment is or is not, in other cases, such a lien while the action is still pending, is not now the question. In the present case judgment has perfected the claim. William Brown did not obtain his discharge until September 21, 1842. Judgment had been rendered against him in favor of Perley in March, of the same year. At the time of rendering judgment, therefore, Brown had no defence to the action, and a demand having been seasonably made upon the present defendant, his liability was fixed thereby. No subsequent discharge of the bankrupt can relieve him from that liability.

Judgment for the plaintiff.