Bird v. Johnston

De Courcy, J. Florence J. Grant, the plaintiff in the original bill in equity, was therein described as of Freeport in the county of Cumberland and State of Maine. By placing his name on the back of the bill the present defendant, John C. Johnston, became an indorser for costs under R. L. c. 173, § 39. Wheeler v. Lynde, 1 Allen, 402. Johnson v. Sprague, 183 Mass. 102. This writ of scire facias against the indorser is based upon the record in the [34] original suit, and the record in that suit is conclusive against him in this proceeding. It was not open to him to show that Florence J. Grant was an inhabitant of this Commonwealth at the time when she filed her bill in equity; and the first answer of the jury' must be disregarded. This disposes of the requests for instructions numbered 1, 2, 3, 4, 10 and 11. M’Gee v. Barber, 14 Pick. 212. Sherburne v. Shepard, 142 Mass. 141. Savage v. Blanchard, 148 Mass. 348, 350. A final decree dismissing the bill with costs was entered in the original suit. The statute made the indorser liable for the costs, as surety, “in case of avoidance or inability .of the plaintiff.” Ruggles v. Ives, 6 Mass. 494. The officer’s return on the execution, that he “made diligent search for the goods, chattels, or lands of the within named Florence J. Grant, the judgment,debtor, but could find none within my [his] precinct,” was some evidence of such “avoidance or inability;” and the jury specially found that she was unable to pay the amount of the execution for costs. This renders the sixth, seventh and eighth requests immaterial; and the ninth was rightly refused. Davis v. Whithead, 1 Allen, 276. Wixon v. Lapham, 5 Allen, 206. No exception was taken to the instructions given by the presiding judgé, and it is to be assumed that the subject matter of the fifth, twelfth and thirteenth requests Was dealt with properly. The liability of the indorser was established by the special finding ' of the jury, that the judgment debtor was unable to pay the costs, and there was no error in directing a verdict for the plaintiffs. It is apparent from the answers of the jury that the defendant was not harmed by the evidence as to the registered letter addressed to Mrs.- Grant. The evidence of statements made by Mrs. Saulnier was competent for the limited purpose for which it was admitted. It follows that the entry must be Exceptions overruled.