Favor v. Philbrick

5 N.H. 358

• Court: Superior Court of New Hampshire
• Decided: February 15, 1831
• Status: Published

Opinion

By the court.

It is objected, in this case, that a writ of •error docs not lie. We are aware that it has been decided in New-York, that a writ of error will not lie where judgment has been arrested, 19 Johns. 247, Horne v. Barney ; 2 Johns. Cases, 215, Fish v. Weatherwax.

The reason assigned in New-York, is, that there is no judgment to be affirmed or reversed. But this is a mistake. When judgment is arrested, there is a judgment, that the plaintiff take nothing by his writ. 2 Mass. Rep. 142 ; Rastal’s Entries, 106, a. And when .such a judgment is entered, where there ought to be judgment on, the verdict, it would be singular if the judgment could not be reversed.

This question was settled in this court, in the case which has been mentioned by counsel, and we have no doubt that it was correctly settled.

But it is further said, on behalf of the defendant in error, that judgment was properly arrested in the court below, the declaration being insufficient. One objection to the declaration, upon which counsel rely, is, that it is not stated when the account was to be delivered to Rogers. But the contract must be understood to have been as stated in the declaration. It was a contract to carry to Rogers, for hire, an account, which was delivered to the defendant for that purpose. Nothing was said as to the time when the account was to be carried. Now it is said that in such a case, the person, who has contracted to . carry, has his life time to perform the contract. But the law is not so. What must be the understanding of the parties in such a case ? If a letter is delivered to a person to be carried for hire to a post office, or perishable articles to á carrier to be sold, at market, has he, if nothing be said, his lifetime to perform the contract ? Certainly not.

Such a construction of the contract would be in the highest degree absurd. The common understanding in such a case, is, that the contract is tobe immediately performed. In this case, the defendant was bound to carry the account'in a reasonable time. It therefore seems to us, that this objection furnished no .legal ground for arresting the judgment-

But it is said that the contract was idle and useless. This, however, does not appear, and surely it cannot be intended. On the contrary, it may be very easily imagined, that the delivery of the account to Mr. Rogers immediately, might have been very useful to the plaintiff. At all events, it seems to us 1hat this defendant, after having contracted to carry (he account, and received a compensation for carrying it, has.no right to ask os to presume that performance of the contract was of no importance to the plaintiff.

We are of opinion, that there was no legal ground for arresting the judgment, and that the order of the court below must be reversed.