How v. Codman

The opinion of the court was delivered by Mellen C. J. As to the first question reserved, we are of the opinion that scire facias is proper process in the present case. It has always been used in Massachusetts ; and its correctness seems never to have been even questioned in a single instance ; though several cases of the kind are reported which were sharply contested on various grounds. In Reid v. Blaney 2 Greenl. 128, we at least indirectly intimated the same opinion which we now" expressly give. We do not say that an action on the case would not be as convenient and correct as the remedy by writ of scire facias ; but there can be no advantage in changing a long established course of proceeding, which relates merely to a remedy, and has no connection with a right. We therefore cannot sustain the objection, w'hich has been urged against this process. The second question has become unimportant, in consequence of our decision in the case of Davis v. McArthur 3 Greenl. 27. The third depends on the meaning of a very loose expression, made use of in the statute of 1821, ch. 59, sec. 8. The sentence is this: “ And the plaintiff’s agent or attorney who shall so indorse [82] “ his name on the original writ, shall be liable, in case of the “ avoidance or inability of the plaintiff, to pay the defendaut 'all “ such costs as he shall recover ; and to pay all prison charges that “ may happen where the plaintiff shall not support his action.” What are prison charges ? If the plaintiffdoes not support his action, the defendant can never suffer any imprisonment on execution ;' if he suffers any, it must be on mesne process. He may be compelled to suffer this, being unable to procure bail; and in his imprisonment, he must necessarily incur expense ; and we do not perceive any expense or charges more properly termed prison charges than these. There certainly'seems to be justice in subjecting the indorser to the payment of these, where the suit proves to be groundless. We say, this seems to be the most correct construction tobe given to the foregoing expressions ; but without deciding this point definitively, we are all clear in the opinion that the charges of committing the original plaintiff to prison on the original defendant’s execution, cannot in any legal or proper sense be denominated prison charges within the meaning of the above'provjsion. Such an expense is not incurred in prison ; and what cofmection have an officer’s fees for travel, or for what is called dollarage, on an execution for a bill of cost of hundreds of dollars, with a prison, or how can they be deemed prison charges ? We are well satisfied, that an officer’s fees on execution, were never intended to be embraced in the above terms ; and accordingly the amount of those fees, now included .in the verdict, must be deducted ; and it is then to stand, so amended, for the balance and no more; as we cannot, on this scire facias, allow any interest. Let the verdict be amended accordingly and judgment be entered for that amount. Note.—After the foregoing opinion was delivered, the Chief Justice observed that as the court had been pressed to revise their decision in the case of Davis v. McArthur, which they, had not thought it expedient to do, being satisfied with the principles on which it rested, he would, for the satisfaction of counsel, state these principles more at large. This he did to the following effect. By the principles of the common law, an attorney or agent who, being duly authorized, makes a contract in the name of his principal, as he ought to do, thereby [83] binds his principal, and not himself. In the case at bar the defendant, as attorney, indorsed the writ in question in the name of the plaintiif suing in that writ ; and if duly authorized so to indorse it, at common law, this would have bound the principal, and not the attorney. The question then is whether the Si at. 1821, eh. 59, which so far as it respects original writs issuing from the court of Common Pleas and from this court, is an exact copy of the law now in force in Massachusetts which was passed in 1784, has altered the common law in relation to that particular contract which is created by the indorsement of a writ. The section contains four provisions. 1. If the plaintiif lives in this State, his writ must be indorsed by himself, or his agent or attorney living within the State. 2. If tho plaint iff lives out of the State, his writ must be indorsed by some responsible person who is an inhabitant of the State. 3. If the person, agent, or attorney, who indorsed the writ is not of sufficient ability, the court may order the procurement of a new indorser, who is to be holden in the same manner as the original indorser. 4. The plaintiff's agent or attorney who so indorses a writ shall be holden to pay the defendant all such costs as he shall recover in case of the plaintiff’s avoidance or inability. It is admitted that where an attorney or agent indorses a writ thus — “A. B. attorney to C. D.” the attorney is liable But where he indorses the writ thus — “C. D. by Ms attorney A. Bit is contended fhat the attorney is not liable. It is true that, at common law, according to. decided eases, such a distinction exists. But the statute has abolished this distinction in cases of indorsements of writs; and has made the attorney liable, though professing to act in that capacity and in no other. It binds him who actually indorses the writ. If the plaintiff indorses it himself, then he is bound ; — and so in truth he is, without his indorsement. If the plaintiff’s agent or attorney indorses it then he is liable, though acting in that capacity. The statute makes it his own contract. This construction is supported by the provision for the procurement of a new indorser in certain cases ; and for the in-dorsement of the writ by some responsible agent or attorney, where the plaintiff is an inhabitant of another State. For, upon the defendant’s construction of the statute, of what use is either of these provisions, or why were they enacted ? It is of no importance whether the indorser be a responsible person or not, if lie is not bound by the indorsement ; and a new indorser is no hotter than the original one, unless liable personally. If the mode of indorsing which the defendant has adopted will protect him from liability, every other attorney may adopt the samo mode ; and the provision which was intended to give rights and furnish an additional security to the defendant will be rendered wholly nugatory. Such a construction must not he admitted as would completely destroy the effect of a law, and amount to an evasion of it. In a word, whether a writ is indorsed “ A. B. attorney to C. D.” or, “CD. . by his attorney A B.”, is immaterial. In both cases A. B. professes to act and does act as attorney, and in no other capacity ; and yet the statute expressly renders the agent or attorney liable. It has in this instance changed the common law. But we are not without authority on this subject. The case of the Middlesex Turnpike Corporation v. Tufts 8 Mass. 266, seems directly in point. The writ was indorsed thus: “The Middlesex [84] Turnpike Corporation, by Royal Makepeace.” It was admitted that Malce~ peace was the agent of the Corporation ; but it was contended that by this indorsement ho had not made himself personally liable to the defendant But the court said that the addition was nothing more than the law would imply: viz. that Makepeace was the agent for the Corporation ; and that the defendant would be entitled to the same remedy against him as if he had written his name only. Here the indorsement was in the same form as in the case at bar, except that he did not describe himself as agent or attorney. The argument of the defendant proceeded on the admission that he would have been bound, had he so described himself ; and yet in the case before us, this very circumstance' is urged as a reason why the defendant should not be held liable. The court there said, the law implied the agency; here it is expressed. Some have said that as the statute requires the plaintiff’s writ to be indorsed by his, or his attorney’s “ Christian and surname,” it cannot be applicable to corporations aggregate, because they have no such name. This is too refined. A plaintiff’s Christian and surname constitute his name; and the corporate name of a corporation is its only name — the statute requires in both cases the plaintiff’» whole name. This nice distinction did not present itself to the mind of Chief Justice Parsons in the case before cited ; because he said expressly that the in-dorsement in that case was binding on Makepeace ; but if such a case or such a plaintiff was not within the meaning of the statute, his indorsement would have had no operation whatever; nor have bound him any more than if he had written his name on any loose piece of paper.