Burley v. Burley
Superior Court of New Hampshire
This was an action of debt, brought by the plaintiff, who sued, as well for the county of Grafton as for herself, to recover a penalty, alleged to have been incurred by the defendant, in taking illegal interest apon a loan of money. The defendant, at November term., 1831, pleaded in bar a release of the action, made by the plaintiff since the commencement of the suit, to wit, on the 20th October, 1831. To this plea there was a general demurrer, and join-der in demurrer.
1Opinion of the Court
By the court. *
The demurrer, in this case, is well taken. An action, qui iam, like this, where part of the penalty goes to the county, cannot be released by the plaintiff, nor in any way compounded without the leave of the court and the assent of the county attorney, who, notwithstanding any adjustment made by the parties, has a right to proceed with the cause until the penalty is paid. Buller’s N. P. 196; 9 Johns. 251, Bradway v. Le Worthey; 11 ditto, 474, Menton v. Woodworth; 1 Wilson, 79, Howell v. Morris; 2 Johns. 405, Haskins v. Newcomb; 1 Taunton, 103, Howard v. Sowerby; 2 ditto, 213,…
2Cases cited4 opinions
- Hallenbeck v. DewittNew York Supreme Court · 1807
- Sneaghan v. BriggsIndiana Superior Court · 1871
- Bradway v. Le WorthyNew York Supreme Court · 1812
- Caswell v. AllenNew York Supreme Court · 1813