Parker C. J.
said, in substance, that the Court were of opinion that Mr. Peabody must be considered as the indorser, and so not a competent witness. The statute says, that the plaintiff’s agent or attorney, who shall indorse his name upon an original writ, shall be liable in case of the avoidance or inability of the plaintiff to pay the defendant such costs as he shall recover ;1 and as agent or attorney, we think Mr. Peabody would be liable.2 It would be an induce
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ment to commence actions, if when the plaintiff was out of the commonwealth, the attorney might put the plaintiff’s name on the writ, and be free himself from responsibility for costs. An ingenious argument might be made on either side, but we think convenience preponderates in favor of holding the attorney liable ; although, for the sake of justice, this might likewise be considered as the indorsement of the plaintiff.
JVeio trial granted.
1.
See the provisions made concerning the indorsement of write, in Revised Stat, c, 90, § 10 to 13.
2.
See Davis v. M'Arthur, 3 Greenl. 27; How v. Codman, 4 Greenl. 79; Harmon v. Watson, 8 Greenl. 286.