Wilson v. Hobbs , 32 Me. 85 ( 1850 )

Tenney, J.

The indorsement of a writ, when required, must be made before the entry of the action in court. R. S. chap. 114, sect. 16. Whether it was indorsed or not, must be determined by inspection of the writ itself, if it is to be found. If pending any suit, the indorser should, in the opinion of the court, be insufficient, they may require that a new indorser should be furnished, who is sufficient. If the order of court, that a new indorser should be furnished within the time given, is not complied with, the suit is to be dismissed with costs for the defendant. R. S. chap. 114, sect. 20. The evidence that the new indorser has put his name upon the writ, must be the same as that of the original indorsement. The proceedings of the court on the question, whether a new indorser should be ordered or not, should be recorded. But it is not important that the fact, that the indorser who was offered and deemed sufficient, has actually made the indorsement upon the writ, should be made a subject of record. A time may be given by the court, extending beyond the adjournment of the term without day, in which it may be done ; and the indorsement may be made out of court, and when the clerk or court may have no knowledge of it, and if made, is effectual. A. record of this fact, not being necessary for its validity, the statement of it upon the record book is not that high species of proof, which is understood in its technical sense to be record evidence, and such as is conclusive, not subject to explanation or contradiction. The party sought to be charged as an indorser, notwithstanding this statement, is allowed to require proof by inspection of the writ itself, that his name is upon the writ, and if it purports to be there, that it is his genuine signature, or authorized by him.

In this case, the writ being introduced by the plaintiff, was found not to have the indorsement of the defendant upon it, but that of the original indorser, and the action is not maintainable. Judgment for the defendant, for his costs.