HOGAN v. FINN, 79 N.H. 526 (1919)

111 A. 271

PATRICK J. HOGAN v. JAMES FINN.

Supreme Court of New Hampshire Grafton.
Decided December 2, 1919.

CASE, for false warranty in the sale of a spring. The action was defaulted but the default was afterwards stricken off upon the defendant’s agreement not to contest the question of liability. Trial by the court, who found a verdict for the plaintiff.

The plaintiff claimed to have been deceived by the defendant as to the title to the spring, but the court found he was not deceived and that his damages sounded in covenant and not in tort. The plaintiff moved for a certificate upon the execution under s. 12, c. 236, P.S. The motion was denied and the plaintiff excepted. Transferred by Branch, J., from the May term, 1919, of the superior court.

George W. Pike, for the plaintiff.

Harry M. Morse and Drew, Shurtleff, Morris Oakes, for the defendant.

Per Curiam.

“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

Page 527

the action is tried shall cause a certificate thereof to be made on the back of the execution.” P.S., c. 236, s. 12.

As the court found the plaintiff’s cause of action did not arise from the wilful and malicious act or neglect of the defendant but was founded in contract, the plaintiff was not entitled to the certificate.

Exception overruled.