Stevens v. Getchell

Mellen C. J.

Stevens, the plaintiff, is an inhabitant of this State, and as such, when he commenced the present action, he had a legal right to indorse his own writ, without being obliged to furnish the name of any other indorser by way of security to the defendant for the costs he might recover. He therefore had authority to write his name himself, or empower another person, as his agent, to write it for him. This is a familiar principle; and we frequently see it reduced to practice.. In the case before us the name of the plaintiff was indorsed on the writ by Mr. Emery, the attorney who commenced the action, in the presence of Stevens, lie not objecting. As the parties have seen fit to submit the cause to our decision upon certain agreed facts, we must have the power to draw such inferences from them as a jury might legally draw. And we cannot fairly draw any other than that the plaintiff assented to the act of Emery in so indorsing his name, more especially when the above fact is viewed in connection with the fact of the prosecution of this suit by Stevens after the objection was made and urged against the legality of the indorsement. We consider this as a ratification of the act of Emery in signing the name of Stevens as indorser, and equivalent to a previous authority. This also is a familiar principle.

It is further contended that the statute does not recognize a right in the plaintiff to authorise another to indorse his name upon his writ, without at the same time imposing an obligation upon the “ agent or attorney” to indorse his own name and capacity in addition thereto. The answer to this is that we have decided otherwise in the case of Skillings v. Boyd, 1 Fairf. 43. The facts were, that the original action was brought on a note payable to A. not negotiable, which had been assigned to 13. The action was commenced by 13. in the name of A. but for the use of B. and the indorsement was in this form. “ B. by his attorney, William Boyd.” Boyd, was sued as indorsor. The Court decided that he was not held, but that B. was the accountable in-dorsor, and that Boyd, as his agent and attorney, wrote his name on the back of the writ; and tbafif the mere name of B. had been indorsed on the writ by himself, without the addition of the word “ attorney,” the law would imply that he acted as such ; and that Boyd, by his authority, having written his name, the legal consequence was the same.

For these reasons we are of opinion that the writ wras legally indorsed.

We are also of opinion that if it had not been so indorsed, the objection comes too late. Many decisions have settled this point. We must consider it as waived when not made at the return term. The defendant could then have inspected the writ, had he inclined to call for it. Our opinion being such as we have stated, the motion of the defendant is overruled, and our judgment is that he answer over to the merits of the action.