Chesley v. Perry

78 Me. 164 | Me. | 1886

Hasiíell, J.

Case, to recover costs of the defendant, as indorser of a writ.

By the act of 1821, c. 59, § 8, Avrits in certain cases Avere-required to be indorsed. Under that act, the court held that scire facias Avas the proper and only proceeding by Avhich costs could be collected from an indorser; but that method required so exact compliance with technical rules of law, that the legislature, in the revision of 1840-41, enacted, c. 114, § 18, that the remedy should be an action on the case, and that a " return upon the execution issued in any such case, by an officer of the county, where said indorser lives, that he had demanded payment of the same of said indorser, and that said indorser has neglected, either to pay the same, or to show said officer personal property of the plaintiff sufficient to satisfy said execution, or that he can not find said indorser within his precinct, shall be conclusive evidence of the liability of said indorser in said suit.” This enactment has been continued without change to the present day. E. S., 1857, c. 81, § 10; E. S., 1871 and 1883, c. 81, § 7. True, the revision of 1857 omits in terms to require a return of the failure of the indorser to show personal property of the plaintiff, but does require a return of the failure to show personal property, that is, property that can be taken upon the execution, and property of the plaintiff' can only be so taken, so that the meaning of the statute of 1840-41 is retained in the subsequent revisions, and a return of an officer, in the language of these revisions, complies with their requirements, and takes to itself their meaning.

Since the enactment of 1841, no case cited at the bar pretends to hold any other prerequisite necessary to charge an indorser than the provisions of that statute define. The officer’s return, •upon the execution in evidence, complies in every particular with the terms of the statute, and is conclusive evidence of the liability of the indorser. The defendant admits that he indorsed -the writ, and no good reason is shown why he should not abide •the terms of his contract.

Exceptions sustained.

Peters, C. J., Walton, Virgin, Libbey and Foster, JJ., concurred.