Skillings v. Boyd

The opinion of the Court was delivered at a subsequent term by

Mellen C. J.

The question whether the defendant is liable in this action, as indorser of the original writ, must depend on the construction of the 8th section of ch. 59 of the revised statutes. It declares that all original writs, before service, shall be indorsed by the plaintiff or plaintiffs, or one of them, if inhabitants of this State, or by his or their agent or attorney, being an inhabitant thereof: and it then declares that the plaintiff’s agent or attorney who shall so indorse his name on an original writ, shall be liable in case of the avoidance or inability of the plaintiff to pay the defendant all such costs as he shall recover, and to pay all prison charges that may happen where the plaintiff shall not support his action. In the case of Ruggles *47& al. v. Ives, 6 Mass. 494, giving a construction of the Act of Massachusetts, the section of which relating to the indorsement of writs, is similar to ours, above cited, Parsons C. J. says, that the defendant, who has recovered his costs, must use all reasonable diligence to obtain the money of the plaintiff; and, as proof of this, must take out execution against him and have a proper return on it. The whole section, and the above construction show, beyond all possibility of doubt, that the plaintiff on record is the plaintiff intended, whether he is the real or nominal one; for execution for the costs can issue against no other person. To subject an indorser to the statute liability, the indorsement must be such as the statute requires ; for at common law, the mere indorsement of a name on the back of a writ, would create no obligation. From what we have stated, it is evident that the indorsement of the words, “ This action is brought for the benefit of Isaac Dyer of Bald- “ win,” can make no difference as to the application of those principles by which the cause must be decided. The indorsement of the writ, is in these words, . “ Isaac Dyer, by his at- “ torney, William Boyd.” It has been argued that Mr. Boyd must be considered as the attorney of Lot 'Davis, the nominal plaintiff, as well as Dyer; because it was necessary to commence the action in the name of Davis. The objection to this argument is, that it is founded on an assumed fact, which expressly contradicts the language and terms of the indorsement. To adopt such a construction would be making a contract for Boyd, instead of giving a construction to the indorsement as it stands. He states that in doing what he did, he acted as the attorney of Isaac Dyer; which excludes the idea and presumption of his having acted as the attorney of any other person. Our statute subjects no agent or attorney to liability on his indorsement, except the attorney of the plaintiff on record. Boyd has not assumed to act as such, but, for another person; In a note appended to the case of How v. Codman, 4 Greenl. 79, this Court particularly noticed the alteration of the common law, made by the 8th section above mentioned. It is important to state it again here. At common law, when an authorised agent does an act in the name of his principal, he thereby binds his prin*48cipal but not himself. But our statute declares that the attorney or agent, duly empowered, by indorsing the writ, thereby binds himself: and this Court has decided that he is equally bound, whether he signs his own name as attorney to the plaintiff, or the name of the plaintiff, by himself as his attorney. See the above case of How v. Codman. In the case of Middlesex Turnpike Corporation v. Tufts, 8 Mass. 266, it was decided that the simple indorsement of a man’s name, without designating himself as agent or attorney, was good and binding ; for the law would imply that he was agent. Therefore, if Isaac Dyer had in person indorsed his name on the writ, it would have bound him ; and upon the principles of the common law, if he employed Mr. Boyd, as his attorney, to indorse his name for him, such an indorsement would bind Dyer; for such an attorneyship is not within the 8th section, which has reference only to an attorney of the plaintiff on record, as we have before observed. Boyd states that he acted as Dyer’s attorney in making the indorsement; and in a suit against Dyer, he would, without any doubt, testify the same to be true. From the facts before us, we are of opinion, for the reasons above assigned, that the present action cannot be maintained. The instruction of the Judge before whom the cause was tried, “ that the indorsement aforesaid was sufficient to charge the “ defendant,” was, in our opinion, incorrect. The exception to this instruction is therefore sustained. The verdict is set aside, and a new trial is to be had at the bar of this Court.