Strout v. Bradbury , 5 Me. 313 ( 1828 )

Meoi.iín C. J.

delivered the opinion of the Court.

As to the question arising upon the first issue, we would observe that our revised statute ch. 59, sec. 8, provides “ that all original writs issuing out of the Supreme Judicial Court, or Court of Common Pleas, or from a Justice of the peace, shall, before they are served, be indorsed on the back thereof by the plaintiff or plaintiffs, or one of them, with his Christian and surname, if he or they are inhabitants of this State, or by his or their agent or attorney, being an inhabitant thereof.” In its terms, the above clause does not require the indorsment of the Christian and surname of the agent or attorney, though perhaps by a fair construction, the intention was to place both on the same ground. By their first plea the defendants do not profess to deny that they wrote their name on the writ in the manner stated, but they allege that they did not thereby so indorse it as to render themselves liable under the statute. It is not to be presumed by the court that they made the indorsement in this manner with a view to evade the law. They were satisfied with it as a legal one, and as such we must believe they honestly intended it. An indorsement of a writ is' a peculiar species of security, given .by a plaintiff, for the costs which a defendant may recover in the cause ; and which costs, in certain circumstances, the indorser may be compelled to pay. But being given for the benefit of a defendant, he is considered as satisfied and contented with the indorsement, as it appears on the writ, unless it is objected to at the return term. It does not appear that the present plaintiffs, who were defendants in the original action, made any objection to it, and, of course, we are well warranted in considering it as a contract, binding on one side, and accepted on the other. The first plea is therefore bad and insufficient.

In giving our opinion upon the remaining questions in the cause, we shall merely refer to the pleadings without a particular statement of them, inasmuch as in the argument, they have been considered as involving a general principle only; and such is the fact, and such the basis of our decision. It does, not appear that either of the Johnsons had any other property than the oxen and horse in question. They were duly attached by Downing as the property of George Johnson in the suit of Mayes against him, March 16, 1825 ; and afterwards, on the 29th of April 1825, they were seized by Leach, another deputy sheriff, on the execution of the present plaintiffs against both the Johnsons, for the said costs; the oxén and horse then being holden by and in the possession of Downing, by virtue of his attachment. Leach, in his return, says they were supposed to be the property of Joseph Johnson. But as Mayes pursued his action to judgment, and within thirty days .caused the oxen and horse to be sold on his execution, as the property of George Johnson ; in the absence of all proof of ownership in any one else, we must take it to be the fact that George Johnson was the true and lawful owner at the time of the sale. This brings us to the two points in the cause, the examination of which will readily lead to its decision.

1. While the oxen and horse were holden by Downing, under Mayes’s attachment, they were not liable to seizure on execution by Leach. Walker v. Foxcroft 2. Greenl. 270. and cases there cited. Leach was a trespasser in seizing them, and liable in damages to Downing for their value, or in repliven for the identical property, if not restored to him.

2. The second point is equally clear. Though Hodgdon reple-vied the oxen and horse from Leach, and did not prosecute the ac-xiou ; and though Leach did not enter his complaint, and obtain judgment for a return; and the present plaintiffs, through the agency of their counsel, were assenting to this course of proceeding, and the restoration of the property to Downing ; still those circumstances do not in any manner impair the plaintiffs right to maintain this action. A judgment for a return of the property would have been wholly unavailing ; if returned to Leach, it must have been restored by him to Downing, or damages equal to its value ; and this amount must have been ultimately a charge upon the plaintiffs. They have not directly or indirectly yielded any thing to Hodgdon, or any one else, which they had a right to retain, or which, if retained, could have been available to them in a pecuniary point of view.

From this general examination of the pleadings and facts, we are perfectly satisfied that the replications are good.

Replication adjudged good.