61 A.2d 615
No. 3755.Supreme Court of New Hampshire Hillsborough.
Decided October 5, 1948.
The filing of an appeal bond by a tenant to secure the payment of rent due and to become due pending the suit, in accordance with R.L., c. 413, s. 25, does not operate as payment of the rent and so discharge the obligation.
ACTION under chapter 413 of the Revised Laws to recover possession of certain premises in Manchester, because the rent was in arrears. The defendant was a tenant at will. Prior to the present proceeding a similar action under the landlord and tenant act had been brought, also in the Municipal Court of Manchester, to recover possession because of a nuisance. The earlier case was decided for the plaintiff by the Municipal Court and the tenant appealed. Accordingly, there were two appeals pending in the Superior Court. No plea of abatement that another action was pending for the same cause, was ever filed in the present case.
A pre-trial hearing was had by the court. The defendant contended that he was excused from the payment of rent because of his filing an appeal bond in the nuisance case. The plaintiff took a voluntary nonsuit in the action brought first. The court ordered a verdict for the plaintiff landlord in the present case, to which order the defendant excepted. All questions of law raised by said exception were reserved and transferred by Lampron, J.
Maurice A. Broderick, for the plaintiff.
Page 244
William G. McCarthy, for the defendant.
PER CURIAM.
The order that the landlord was entitled to possession for non-payment of the rent was correct. It could not reasonably be found that the parties intended that the giving of the first appeal bond should operate as payment of the rent and so discharge the obligation. One of the purposes of the bond was to secure the payment of rent due and to become due pending the suit. R. L., c. 413, s. 25.
Exception overruled.