Johnson v. Abbott

Stanley, J. The court have authority to allow the amendment (Stebbins v. Ins. Co., 59 N. H. 143; Folsom v. Ins. Co., 59 N. H. 54; Demeritt v. Mills, 59 N. H. 18; Gitchell v. Andover, 59 N. H. 363), and that authority should be exercised to prevent injustice. The writ was served on Farnham. He appeared, and did not object to the writ or service, a,nd he does not object to the amendment. The subsequent attaching creditors had notice of the pendency of this suit in February, 1876, and of the claim of the plaintiffs that Farnham was chargeable as trustee. In Farnham’s deposition, taken April 12, 1876, before one of the counsel for the creditors, he stated that he was summoned as trustee in this suit, ■and there is, attached to the deposition, an agreement of that date, signed by Farnham, agreeing that his deposition in one of the suits may be used in all. In the deposition, he claims that it must be considered, subject to the action of the court, in all previous suits, against him as trustee. After the deposition was taken, at August term, 1876, a receive)' was appointed to collect the notes disclosed ; and in February, 1879, the receiver, with the knowledge of and without objection from the creditors, paid to these plaintiffs $250 of the money collected on the notes. If the creditors were not aware that Farnham’s name was not in the plaintiffs’ writ, they had actual notice of this suit, and that the plaintiff claimed to hold Farnham as trustee; and this was enough to put them on inquiry, and they are chargeable with all they would have learned from inquiry. Moreover, the writ was on file, and that was constructive notice that Farnham’s name was not in it. Stowe v. Meserve, 13 N. H. 46; Warren v. Swett, 31 N. H. 832, 341; Cooper *152 v. Newman, 45 N. H. 339, 342. Their consent to the payment by the receiver to the plaintiffs of part of the funds in his hands, and then suffering them to incur the additional expense of this suit upon faith in the validity of their claim, after they might by diligent inquiry have ascertained the facts, was a waiver of the objection now made. Runlet v. Otis, 2 N. H. 167 ; Lisbon v. Bath, 23 N. H. 2, 9; Foss v. Strafford, 25 N. H. 78; Corbett v. Norcross, 35 N. H. 99; Richardson v. Chickering, 41 N. H. 380, 385; Peebles v. Rand, 43 N. H. 337; Lyman v. Littleton, 50 N. H. 42. The omission of Faruham’s name in the body of the writ was evidently a clerical mistake; and it is not shown or claimed that the creditors have changed their position in any respect, or that, if this amendment is made, they will lose any right which they understood they had acquired by their attachments. They all supposed that his name was inserted in this writ as well as in the others, and the amendment will merely make the writ what it was intended to be, and what all parties, in this and the other suits, for a long time supposed it was. The amendment is necessary to prevent injustice, and it should be allowed. Case discharged. Smith, J., did not sit: the others concurred.