Reid v. Blaney , 2 Me. 128 ( 1822 )

Mellen C. J.

delivered the opinion of the Court.

The only question raised by the demurrer is whether debt< is the proper action.-

It is admitted that in Massachusetts the action of debt is no.t used; but in all the reported cases the process was scire facias. No objection was made to that mode of proceeding; on the contrary 'the Court, in speaking of the scire facias, seem to com sider it as the usual and proper process.

But there seems to be an objection, on principle, to an action of debt. The undertaking of an indorser of a writ is in its nature conditional; dfepending on the avoidance or inability of the plaintiff; of which certain statute proof is required; and it is also a collateral undertaking by one man for the conditional payment of the debt of another. It seems to be settled that on such an undertaking or promise an action of debt will not lie. To this point see Chilly on Pleading, 94, 106.

The statute respecting the writ of audita querela, has provided that such writ must be indorsed ; and that an action of debt may be brought against the indorser. This is a special provision in that particular case only.

We are therefore of opinion that this action cannot be maintained and there must be

Judgment that the declaration is insufficient.