Nelson v. Ladd

47 N.H. 343

Opinion

Bellows, J.

The question before us involves the construction of sec. 10, ch. 200, of the Revised Statutes, which provides that "if the cause of action in any action of trespass, or trespass on the case, has arisen from the wilful and malicious act or neglect of the defendant, the court or justice before whom the action is tried, shall cause a certificate thereof to be made on the back of the execution issued in such action, and the defendant shall not be discharged on giving bond as provided in the preceding chapter.”

It is urged, by the defendant that this case does not come within the provisions of this law, upon the ground that acts accompanied with force only are contemplated. But we do not so understand it. Actions of trespass on the case are expressly included, as are also injuries arising from mere neglect, if it be wilful and malicious. The only question, therefore, is, whether the act of the defendant causing the injury to the plaintiff was wilful and malicious.

The substance of the charge is, that by falsely and fraudulently representing a certain horse, harness and buggy wagon, to belong to defendant, free from any incumbrance, he induced the plaintiff to buy them, when the defendant in fact well knew them- to be under mortgage for $225, which plaintiff was obliged to pay.

By the default the defendant confessed the truth of .these allegations, and we think the court would be fully justified in making the certificate upon that ground. The charge was for deceit, for a false affirmation of a clear title in himself, when he knew it was heavilv incumbered.

Such an act may well be regarded as both wilful and malicious. He knew his statement to be false, and his purpose must have been to deceive and defraud the plaintiff. It was equivalent to obtaining money by false pretences, and in this State it would be an indictable offence.

We have, therefore, no difficulty in holding that the act was malicious within the meaning of the law. 4 Starkie’s Evid. 902, and cases; Commonwealth v. Weldon, 3 Cush. 558; 2 Greenl. Evid. sec. 453, and cases cited; State v. Avery, 44 N. H. 392.

It is urged, also, that the cause of action arose in another State; but as this provision in our statute merely concerns the remedy, it is not material where the cause of action arose, so far, at least, as respects this question.

Upon these views,, we hold that the certificate was properly made.