Davis v. McArthur , 3 Me. 27 ( 1824 )

Weston J.

delivered the opinion of the Court.

.The statute of 1821, ch. 59. sec. 8. prescribes that original writs shall be indorsed by the plaintiff or plaintiffs, or one of them, “ if he or they are inhabitants of this State, or by his or their-agent or attorney, being an inhabitant thereof.” And the plaintiff’s agent or attorney, thus indorsing, in the case of the avoidance or inability of the plaintiff, is made liable to pay the defendant all such costs as he npiy recover, and all, prison charges ; where the plaintiff shall not support his action. In the case before us the original writ was .indorsed, “ George Wentworth, by Arthur McArthur, his attorney.” The term agent or attorney supposes and implies a principal, acting by substitution. The attorney, by naming his principal, and professing to act for him, does not exonerate himself from the conditional liability, which the statute imposes. He is presumed to know the law and the obligation he assumes, by indorsing the original writ, in the character of attorney. The defendant .thereby acquires the right ultimately to look to him, if he should fail of his remedy against the plaintiff. The defendant in the present case, having put his name upon the writ as attorney to the original plaintiff, has, in the opinion of the Court, made himself liable as indorser. The case of Middlesex turnpike corporation v. Tufts 8 Mass. 266, cannot be distinguished in principle from the one before us.

The reference of actions pending, by agreement of the parties, under a rule of Court, has become a very common practice in judicial proceedings, it is usually attended with less expense to the parties litigant. A hearing may be had in the neighborhood of the parties and witnesses, and the attendance of the latter is seldom required for more than a single day ; although where a cause is to he submitted to a jury, the time when it may come on for trial being uncertain, their attendance for many days is not unfrequently necessary. The indorser is liable for costs generally ; and such as arise under a rule of Court are regularly taxable, in favor of the prevailing party, unless the referees otherwise adjudge.

The exceptions in this case arc overruled ; and judgment is to be rendered for the plaintiff.