Brackett v. Bartlett

Woods, J. The provisions of the Revised Statutes, ch. 163, §10, derived from an ancient and established practice of courts of chancery, (Humphreys v. Humphreys, 3 P. W. 349; Goodrich v. Pendleton, 4 S. C. Rep. 549,) enabled the plaintiff, who sued as administrator before having been accredited as such in this State, to prosecute his suit, if, after having taken out letters, he had, at the first or second term of the court, indorsed the writ; and the question first arising is, whether the writ was indorsed by him. The plaintiff, living out of the State, was not a sufficient indorser at the time the action was commenced, and the indorsement of his name upon the writ was of no effect to bind him, but the attorney who inofficiously placed it there bound himself, and the words “ attorney of the plaintiff” are to be taken as merely descriptive. Woods v. Dennett, 9 N. H. Rep. 55; Savage v. Rix, 9 N. H. Rep. 263; Pettengill v. McGregor, 12 N. H. Rep. 179. There having been no indorsement since the commencement of the suit, it is plain that the condition on which the statute permits the plaintiff to prosecute the suit has not been satisfied, unless the liability shifted from the attorney to the plaintiff, by the mere act of the latter in taking letters of administration. For this there is no argument from analogy or otherwise, nor is such a position assumed. The other question is upon the motion of the plaintiff for leave to indorse his writ nunc pro tunc, and thus to save his action by relation to the time when the indorsement ought to have been made. But it was held in the case of Pettengill v. McGregor, that if the writ were not properly indorsed before service, the court will not permit it afterwards to be indorsed with- • out the consent of the defendant. The principle of that de [131] eision seems to be fully applicable to the present case, and to preclude the allowance of the motion. The statute prescribes as a condition of the administrator’s prosecuting a suit begun under the circumstances of the present one, an act by which the defendant may, in all cases, know at an early period with whom he has to contend, and who is to answer the consequences of an ilL-founded action. The motion was, therefore, justly disallowed, and there must be Judgment on the verdict.