Hackett v. Pickering

5 N.H. 19 | Superior Court of New Hampshire | 1829

The opinion of the court was delivered by

Richardson, C. J.

There is no pretence upon the case stated, that the note was obtained by any fraud or misrepresentation, which can render the contract void. The defendant was told, that he was still liable, and that the action was continued. But it does not appear that the officer who told him this, had any reason to suppose that what he stated was false, or that he made the statement with an intent to deceive. If there was. any misrepresentation, it does not appear to have been made wilfully, for the purpose of deceiving. We therefore think, that the defendant is not entitled to retain the verdict on this ground.

But it is contended, that at the time when this note was made, the attachment was dissolved, and that therefore the note was given without any consideration. If this ground of defence be well founded in fact, it is a decisive answer to the action- It therefore becomes necessary to consider, what was the situation of the action, Brown v. Rollins, at the time this note was made p

It appears by the case stated, that at that time more than thirty days had elapsed alter the end of the term, when that action was defaulted. But the language of the statute is, “ all goods or estate attached to respond the judgment that may be given in any suit shall not be released, or discharged from such attachment until the expiration of thirty days next after the rendering of such judgment, on which the plaintiff may have execution or until judgment be rendered thereon for the defendant, upon which he may have execution against the plaintiff.” It does not appear, that judgment has ever been rendered in the action Brown v. Rollins ; for a default is not a judgment.

It is a common practice both in this court and in the court of common pleas, to continue actions for judgment after a default for the purpose of saving an attachment. This is often necessary, where there are several attachments upon the same property. In such a case, if he, who has the first attachment, cannot obtain judgment, those, whose attachments are subsequent, are compelled, in case of a default, to move that their actions be continued for judgment.

When a default has been entered in any action, the plaintiff may, if no continuance has been ordered, take judgment at any time afterwards as of the term, when the default was entered. But if judgment be thus taken more than thirty days after the end of such term, any attachment, which may have been made by virtue of the original writ, will be ipso facto dissolved.

And there are cases, in which this court* and we suppose the practice is the same in the court of common pleas, permits actions, in which defaults have been entered without continuances to be brought forward upon the docket, at subsequent terms in order to save attachments. Such permission, is, however, by no means a matter of course. Unless the application for the purpose be promptly made at the next term and upon the most satisfactory grounds, the permission will not be granted, or at least will not be granted without so restricting it, that it shall not be to the prejudice of third persons.

In this case it is stated, that judgment could not be' taken in the case of Brown v. Rollins, by reason of the loss of the note, on which that action was founded. When the loss of the note was first discovered, is not stated. But it seems the loss must have been first discovered after the court of common pleas adjourned, otherwise judgment might have been rendered by the court, notwithstanding the loss of the note. According to our practice, judgment cannot be taken by default in an action upon a promissory note without filing the note with the clerk, or, in case of the loss of the note, procuring a particular order of the court for judgment. The only method, by which the attachment in that case could be saved then, was by an application to the court at the next term to bring the action forward upon the docket. And so far as the facts are now disclosed in this case it seems to have been a proper case for such an application, and we think it may be reasonably presumed, that such an application, had it been duly made, would have been successful.

The circumstance, that Rollins died soon after the term when the action was defaulted, docs not vary the law of the case. Because it is provided by statute that, ££ in all cases where any party shall die, and the cause of action doth survive and is prosecuted by or against the executors or administrators, the attachment made on the original writ shall be and remain good in the same manner as though such party had not died.” Notwithstanding the death of Rollins, the action might have been brought forward and the attachment saved. 7 Mass. Rep. 254, Rockwood v. Allen.

If Rollins had died, and his estate had been represented as insolvent to the judge of probate, and had been decreed to be administered in the insolvent course before the time when this note was given, in that case it might have been worthy of consideration whether the attachment must not be considered as thereby dissolved and the note as given without consideration. But it does not appear even that he was dead at that time, and we are of opinion that the attachment cannot be considered as then dissolved and that the giving up of the written contract to tire defendant was, under the circumstances, a sufficient consideration to sustain this note.