M'Gee v. Barber

Shaw C. J. delivered the opinion of the Court. The principal question in this case arises from the averment in the scire facias, that the former writ was indorsed by Isaac C. Barber, when it appears that the defendant, Isaac B. Barbel was sued in this writ as such indorser, and has been defaulted. The question is not without difficulty ; and were this an original writ, it is doubtful whether it could be maintained ; but being a writ of scire (acias, it is subject to some different considerations. [215] Originally a scire facias was a judicial writ; and it is so still, in its' principal characteristics. It is so far a judicial writ, that it takes up a cause in which other proceedings have been had ; it issues upon some existing record ; and it must issue from the court in which such proceedings have been had, and where such record remains. A bail-bond, strictly speak'ng is not a part of the record ; but in our practice, where bail to tue sheriff are, by force of the statute, held liable as bail above, the bail-bond performs the functions and stands in the place of a recognizance, and is therefore consistently enough made the foundation of a scire facias, as a recognizance. The proceeding by scire facias against an indorser, is closely analogous to that against bail, the indorser being, by force of the statute, rendered liable for the plaintiff, in certain contingencies, as the bail is for the defendant. The writ being regarded as a judicial writ, it is deemed to be the act of the court and its officers, and consists in all the introductory part, of a recital of the previous proceedings there appearing. If there is a misrecital in those proceedings, it is deemed to be the misprision of the clerk, and there being the record and proceedings to amend by, it is amendable as of course, as well after service as before. Campbell v. Stiles, 9 Mass. R. 217 ; Young v. Hosmer, 11 Mass. R. 89. By a scire facias the record and proceedings are referred to, and we think it is competent for the Court to look into thé record and proceedings referred to and recited, to see if there he any misrecital; and in doing so, we find that the writ was actually indorsed by Isaac B. Barber, the defendant, so that the alleged averment, that it was indorsed by a person of another name than that of the defendant, is a mere misrecital. Being a mere misrecital in a judicial writ, it is to be deemed the misprision of the clerk, and amendable as of course, by order of the same court where it is pending ; and in any other court, taking the whole together, the misrecital is corrected by the record , the truth sufficiently appears, and the misrecital will be deemed a mere error in form. On these grounds we think there is no sufficient reason to arrest the judgment, for this "ause. [216] Several other causes in arrest of judgment were assigned, which may be briefly noticed. The statute having required that an original writ shall be indorsed by the plaintiff, or by some agent or attorney, whoever indorses it must be presumed to indorse as agent or attorney, and would be estopped to deny his liability. Gilbert v. Nantucket Bank, 5 Mass. R. 97. That the indorser became liable on the avoidance of the plaintiff, is an inference of law from the facts, and needs, not to be stated in terms. We are not aware, that in a scire facias to enforce a judgment, it is necessary, although perhaps it is usual, to aver negatively, that the judgment has not been reversed. It certainly would not be necessary or possible to prove such negative averment. The presumption of law is, after a judgment rendered, that it remains in force, till the contrary is shown. It is necessary to aver that it is not satisfied, because it is in that contingency only that the indorser is liable. But we think that is sufficiently averred, by stating in the writ, that the necessary means were used for obtaining satisfaction, and that they have proved unavailing. The averment is, that all the costs recovered by the defendant against the plaintiff in the original suit, together with the subsequent expenses, remain wholly unpaid. It was not necessary, we think, to aver, that by force of any law of this commonwealth the indorser became liable ; the statute is a general law, to be taken notice of without being specially pleaded. It is sufficient to aver the facts which bring the indorser within the operation of the statute, without stating in terms the liability, which is an inference o/ law. It is averred that the execution was returned, and what proceedings were had upon it; it was not necessary to set forth the officer’s return, in terms, or to state the name of the returning officer. The avoidance of the plaintiff was the material averment, and the return is the proper proof of that averment. We think it was not necessary to aver, that the writ was indorsed before service. The purpose of the indorsement is declared by the statute. The writ could not be legally served [217] without an indorsement, and therefore the averment that it was indorsed, is to be considered as used technically, and to im port, by legal intendment, that it was indorsed, conformably to the statute, before service. Exceptions sustained, and the motion in arrest of judgment overruled.