dissenting. — The only question of law which arises in this case and is presented to us upon the exceptions, is, did the judge at Nisi Prius decide correctly, when from the evidence admitted, he ruled that the endorsement of the writ was a sufficient compliance with the requirements of the statute. If there had been no other evidence hat simply the endorsement, the ruling would be sustained by the case of State v. Ackley, 8 Cush., 98. But hero parol testimony was admitted without objection, as in Stone v. McLanathan, 39 Maine R., 131, which explains the written endorsement, and discloses the true intention of the endorser. The evidence having thus been admitted, it becomes a part of the case, which is presented thus:
“ This writ is from the office of D. L. Mitchell, who does not intend by subscribing his name hereon, to assume the liabilities of an endorser of this writ, but merely to indicate by whom it was made.”
Such language, the judge held, constituted a legal and binding contract to pay the defendant his costs in the event of a successful defence. This cannot be correct, unless it is to be presumed that an attorney at law means directly the reserve of what he says, and in making a contract can never use a negative. If the question arose on exceptions to the admission or exclusion of the parol testimony, my conclusion might be different; that would present a case never as yet decided in this, and so far as I can learn, in any other state.