Towle v. Lane
61 N.H. 586
| N.H. | 1882

The judgment recovered by Adna's assignee against Towle, fully satisfied by levy on Towle's property, was an extinguishment of the payment, and left Towle's debt as if no payment had been made, as to all persons bound by the judgment. Ladd v. Wiggin, 35 N.H. 421; Leach v. Tilton, 40 N.H. 473.

The defendants had a direct interest in the suit, which resulted in an extinguishment of the payment, and were bound by the judgment, if they had notice of the suit and were called upon and had opportunity to defend it. Chamberlain v. Carlisle, 26 N.H. 550; Hayward v. Bath, 38 N.H. 183; Chapin v. Curtis, 23 Conn. 388; 1 Gr. Ev., ss. 55, 523, 527, 538, 539. Formal notice of the suit, with an express requirement to appear and defend it, was not necessary. Boston v. Worthington, 10 Gray 496; Barney v. Dewey, 13 Johns. 226; Robbins v. Chicago, 4 Wall. 657. If the defendants were aware of the suit, and that Towle relied upon them to keep good the payment, and they had opportunity to defend it, they were bound by the result as much as if a formal express call had been made upon them by him to appear and defend it. With a full knowledge of their rights and liabilities involved in the suit, and of Towle's reliance upon them to defend it, they having opportunity to do so, the defendants could not stand by watching for and ready to take advantage of a favorable judgment, and then be heard to plead want of notice and appearance as parties against the conclusive character of a judgment unfavorable. Robbins v. Chicago, supra. Having seasonable notice of the suit, and opportunity to appear and contest it upon the merits, the defendants are concluded by the judgment. Whether the judgment would be conclusive, as to the extinguishment of the payment, against persons not bound by it as parties or privies, we need not inquire.

Judgment for the plaintiff for the amount of the note.

CLARK, J., did not sit: the others concurred.