Shaw v. Lyford

14 N.H. 121

Opinion

Parker, C. J.

We are of opinion that this motion is reasonable, and it is supported by authority. 8 Cowen R. 121, Honeywell vs. Burns, is a case directly in point.

The defendant has by his own act deprived the plaintiff of any remedy against his property, if he had any; and, by his petition in the district court, he has declared himself unable to pay his debts. A discharge in bankruptcy, (if he has obtained or shall obtain one,) may be pleaded in bar of the farther maintenance of the present action; but, should such a plea be filed, the defence would thereafter proceed, not upon the ground that the plaintiff had not good cause of action when he commenced his suit, but upon the ground that the defendant, being unable to pay, had been exonerated therefrom for that reason. Surely, this is not a good reason why the plaintiff should be compelled to proceed against him; nor, if he declines to do so, why he should be subjected to costs.

Perhaps an affidavit, on the part of the defendant, that the plaintiff had no cause of action, together with a plea to the merits, and proper security for the payment of any sum which the plaintiff should recover, would alter the case.

Motion granted.