Feneley v. Mahoney

Shaw C. J. delivered the opinion of the Court. The question in this case is, whether the Court of Common Pleas had authority, under the statutes, to require the plaintiff to furnish an indorser to the writ, and on failure of doing so, to dismiss the action. This depends on Revised Stat. c. 90, §10. After stating certain cases, in which the plaintiff shall furnish an indorser, and others in which this shall not be required, the statute has this proviso : “ Provided, that the court may, in all cases, when it shall appear to them reasonable, require the plaintiff to procure a sufficient indorser.” Attempts have been made to show, that this proviso was intended to apply to and qualify the last preceding clause of the section only ; but we think it clear that it was intended to apply to the whole section. In looking into the report of the commissioners, it appears that this proviso was not included in their draft of this section. It was subsequently reported by way of amendment, by the committee, and ultimately adopted by the legislature as part of the section ; and we think, it was manifestly intended to qualify and control the whole enactment, and extend the discretionary power to all cases. The obvious intent of the legislature was, to indicate as a general rule, that a plaintiff within the State should have liberty to sue without giving security for costs ; but if not within the reach of the process of the court, or if h,e should depart from it, such security should be required. But then it probably occurred to the legislature, that extraordinary cases of oppressive and vexatious conduct on the part of bankrupt plaintiffs might arise, and they intended to vest the courts with full power to judge of such cases, and require an indorser according to the circumstances, when it should appear to them reasonable. [214] The view which this Court has taken of this provision is this ; that it is the obvious general policy of the legislature to permit a plaintiff, though poor, and apparently insolvent, to sue for his rights, so long as he is an inhabitant of the Common • wealth and within its jurisdiction, and that it is not fit and expedient to require security for costs, which might in many cases deprive a party of his rights, merely on the ground of insolvency or poverty of the plaintiff, and where there is not superadded some appearance of oppressive and vexatious conduct, by prosecuting groundless suits, or renewing them, one or more times, after having been unsuccessful; or where there is some apparent misconduct of the like kind. The court therefore will not in general require an inhabitant plaintiff to furnish an indorser, on the ground of apparent or real poverty or insolvency ; but will exercise that power only to prevent vexation or oppression. But the Court are of opinion, that it was clearly within the power of the Court of Common Pleas to require an indorser, that this was a power, the exercise' of which depended upon their own judgment of what was reasonable, under the circumstances presented to them. Of course the grounds of their decision are not open for consideration in this Court. Judgment of the Court of Common Pleas dismissing the . plaintiff’s action, affirmed, with costs.