Farnum v. Bell

| Superior Court of New Hampshire | May 15, 1824

■IIichardson, C. J.

The .slatiito of February 9, 1791, see. 7, (1 N. H. Laws 100,) enacts, “ that all original writs, “ &c. shall, before they are served, be endorsed on the back “ thereof near the bottom, by and with the name of the plain- “ tiff, &c- or in like manner by his agent or attorney, &c., “ and the plaintiff’s agent or attorney, who shall so endorse “ his name as aforesaid, shall be liable, &c. to pay the defen- “ dant all such costs as he shall recover and the question is, whether there is enough alleged in the scire facias now before us, to charge this defendant, as endorser, of a writ, under the statute just recited ?

This action is given by the statute, and it is certain, that the plaintiffs cannot prevail, unless they bring their case substantially witbin the provisions of the statute, upon which it rests.

The first objection to this scire facias is, that it is not allege ed, that the name of this defendant was endorsed upon the original writ near the bottom. When this exception was first mentioned, it did not seem to us to deserve much consideration ; but upon a more attentive examination of the statute, we have not been able to conjecture what sufficient answer can be given to it. The statute declares, that the writ shall be endorsed near the bottom, and that the agent or attorney, who endorses Ms name as aforesaid, shall be liable. There is no ambiguity, no uncertainty, in the language of the statute. All is clear, plain, explicit; and it seems to us, that a scire facias upon this statute must allege, that the original writ was endorsed in the manner the statute requires.

Another exception to this scire facias is, that it does not allege, that the defendant endorsed his name upon the original writ before it was served. The same remarks are applicable to this objection as to the last. It is clearly required by the statute, that the writ shall be endorsed before it is served. We are aware, that by our practice, permission is frequently given to endorse a writ, after the action is entered ; and we entertain no doubt of the validity of such an endorsement ; for no court would in such a case permit the endorser to shew that the writ was endorsed after it had been served, for the purpose of avoiding his contract.

There is a further objection to this scire facias. It is not alleged, that this defendant endorsed the original writ, as attorney of the plaintiff, in that writ; nor that the plaintiffs, in this suit, were defendants in that. There is nothing alleged in this scire facias, from which it can even be inferred, that Evans was plaintiff, and these plaintiffs defendants in the original suit, except the allegation, that these plaintiffs recovered judgment for costs against Evans, and that Bell became liable by endorsing the writ, to pay the costs these plaintiffs might recover against Evans. As the scire facias is given by the statute to the defendants in the original suit, against the agent or attorney of the plaintiff in the original suit, -nothing can be clearer, than that the relation, in which these parties stood to the former suit, must be alleged with reasonable certainty, and that the want of such an allegation cannot be supplied by any vague inference from the facts alleged. The scire facias is then in this respect defective in substance. 2 Mass. Rep, 521, Stilson vs. Tobey.

The plaintiffs’ counsel, after the above opinion was delivered, moved for leave to amend.

By the court —As it appears, from the scire facias, that Evans was an inhabitant of this state, and might have endorsed his own writ, we are of opinion, that after a joinder in demurrer, no leave to amend ought to be given to the plaintiffs.

Judgment for the defendant.