Wheeler v. Lothrop , 16 Me. 18 ( 1839 )

The opinion of the Court was drawn up by

Emery J.

In this scire facias the plaintiff attempts to charge the defendant, as indorser of an original writ, brought by one John Fabyan against the plaintiff, before a Justice of the Peace, who rendered judgment against Fabyan, and he appealed to the Court of Common Pleas. That Court rendered judgment upon the appeal in favor of the plaintiff against said Fabyan. On this scire facias the plaintiff produced in evidence the record of that judgment, which corresponded with the one declared on in the plaintiff’s writ.

We do not perceive, that the Judge in the Court of Common Pleas did any injustice to the defendant in receiving the certified copy of the Judgment of Justice Fuller, for said Wheeler against said Fabyan, and an appeal therefrom by said Fabyan to the Court of Common Pleas. It would have been totally irregular to receive the parol testimony of the magistrate that there was no record of such judgment, which he in his official capacity had certified to exist. It is true that the plaintiff was obliged to use due diligence to obtain payment of his costs from Fabyan. But the conclusion is incorrect, that he must seek his remedy first against the sureties for prosecuting the appeal, before, he could resort to the defendant. The statute throws upon the indorser of the writ, the responsibility of answering for the costs of the defendant in the original suit upon the avoidance or inability of the plaintiff.

The return of the arrest of Fabyan and commitment on the execution, and his subsequent discharge by taking the poor debtor’s oath, exhibit satisfactory evidence of the inability of said Fabyan to satisfy the costs, for whieh remedy is now sought, unless this evidence is impeached, and no attempt of that kind was made.

The fact that the present defendant was the only surety for the prosecution of' the appeal, and that he had brought forward, and entered the action, did not exonerate him as indorser of the writ, nor impose on the plaintiff the obligation to seek redress against him as surety for prosecuting the appeal. He could only recover, in such suit, the costs after the appeal. The remedy in the present suit is more comprehensive. The defendant’s handwriting on the original writ, having been proved, his liability is established. By the plea and brief statement, the fact of having indorsed the original writ was not in truth contested.

We coincide with the Judge of the Court of Common Pleas, that the facts contained in the defendant’s brief statement are not sufficient to bar the action.

The exceptions are therefore overruled.