Barker v. Barker

39 N.H. 408

Opinion

Bellows, J.

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The practice of permitting subsequent attaching creditors, and the like, to appear and defend when they have an interest to protect, is well established in this State; but it is always upon condition that security be given for the costs occasioned by such defence. When so admitted, they defend in the name of the nominal party, and may prosecute the defence to final judgment; and we are of opinion that, under the law of 1855, they may appeal, upon giving the usual security. By that appeal the judgment in the court below is vacated, and the cause is left as it stood before the rendition of judgment. It is strictly a continuation of the same cause, and neither discharges attachments or the securities for costs given by third persons, admitted to defend. Stalbird v. Beattie, 36 N. H. 455; Wallace v. Brown, 25 N. H. 220. No good reason, then, can be perceived for restricting the right to defend to a trial in the Common Pleas.

The case of a review is different; that is a new suit. The judgment in the original suit is final and not vacated by the review, as is established in Pike v. Pike, 24 N. H. 384; Badger v. Gilmore, 37 N. H. 457. The securities, by attachment and otherwise, obtained in the original suit, are no longer available; and, accordingly, it is held, in Pike v. Pike, that the leave granted in the original suit to defend does not authorize such party to bring review; but the reasoning of the court in that case strongly corroborates the views we have here taken. The judgment of the court below must be affirmed.

Motion denied.

Dob, J,, having Been of counsel, did not sit.