Kelley v. McMinniman

58 N.H. 288

• Court: Supreme Court of New Hampshire
• Decided: March 5, 1878
• Status: Published

Opinion

Clark, J.

It is contended that the trustee should be discharged because he made and indorsed the writ, and entered the action as the attorney of the plaintiff. There is no suggestion of fraud. The trustee is not now the attorney of the plaintiff, and it does not appear, and is not claimed, that the rights of the principal defendant have in any way been prejudiced by the fact that the plaintiff’s writ was made by him. It is admitted that there are funds of the principal defendant in the hands of the trustee, and his liability is determined by the state of facts existing at the time of his disclosure. Smith v. Railroad & Trs., 33 N. H. 337.

But while it is apparent that the rights of the parties in this case have not been prejudiced, and that no impropriety was intended by the attorney who made the writ, we deem it our duty to say that such practice is irregular, and not to be encouraged.

Exceptions overruled.

Bingham, J., did not sit.