Equity Pleading and Practice, Indorser of bill. Scire Facias, For costs in suit in equity. Estoppel.
Under R. L. c. 173, § 39, one who writes his name on the back of a bill in equity brought by a plaintiff not an inhabitant of this Commonwealth becomes an indorser liable for costs.
In an action of scire facias against the indorser of a bill in equity for costs ordered to be paid by the plaintiff in such suit, the defendant in scire facias is bound conclusively by the record in the suit in equity; and, where the bill that he indorsed describes the plaintiff in equity as a resident of another State, the defendant at the trial of the seire facias cannot be allowed to show that the plaintiff in the suit in equity was an inhabitant of this Commonwealth when the bill in equity was filed.
In such an action of scire facias a finding of the jury in answer to a special question of the court, that the plaintiff in the suit in equity was an inhabitant of this Commonwealth at the time of the filing of the bill, must be disregarded as of no effect.
Under R. L. c. 173, § 39, which makes the indorser of a bill in equity liable to pay all costs which may be awarded against the plaintiff "in case of avoidance or inability of the plaintiff," a statement in the return of the officer on the execution for costs, that he "made diligent search for the goods, chattels, or lands of the within named [plaintiff in equity], the judgment debtor, but could find none within my precinct," is some evidence of such "avoidance or inability" and warrants a special finding of the jury that the plaintiff in equity was unable to pay the amount of the execution for costs.
De COURCY, J.
Florence J. Grant, the plaintiff in the original bill in equity, was therein described as of Freeport in the county of Cumberland and State of Maine. By placing his name on the back of the bill the present defendant, John C. Johnston, became an indorser for costs under R. L. c. 173, § 39. Wheeler v. Lynde, 1 Allen, 402. Johnson v. Sprague, 183 Mass. 102. This writ of scire facias against the indorser is based upon the record in the original suit, and the record in that suit is conclusive against him in this proceeding. It was not open to him to show that Florence J. Grant was an inhabitant of this Commonwealth at the time when she filed her bill in equity; and the first answer of the jury must be disregarded. This disposes of the requests for instructions numbered 1, 2, 3, 4, 10 and 11. M'Gee v. Barber, 14 Pick. 212. Sherburne v. Shepard, 142 Mass. 141. Savage v. Blanchard, 148 Mass. 348, 350.
A final decree dismissing the bill with costs was entered in the original suit. The statute made the indorser liable for the costs, as surety, "in case of avoidance or inability of the plaintiff." Ruggles v. Ives, 6 Mass. 494. The officer's return on the execution, that he "made diligent search for the goods, chattels, or lands of the within named Florence J. Grant, the judgment debtor, but could find none within my [his] precinct," was some evidence of such "avoidance or inability;" and the jury specially found that she was unable to pay the amount of the execution for costs. This renders the sixth, seventh and eighth requests immaterial; and the ninth was rightly refused. Davis v. Whithead, 1 Allen, 276. Wixon v. Lapham, 5 Allen, 206.
No exception was taken to the instructions given by the presiding judge, and it is to be assumed that the subject matter of the fifth, twelfth and thirteenth requests was dealt with properly. The liability of the indorser was established by the special finding of the jury, that the judgment debtor was unable to pay the costs, and there was no error in directing a verdict for the plaintiffs.
It is apparent from the answers of the jury that the defendant was not harmed by the evidence as to the registered letter addressed to Mrs. Grant. The evidence of statements made by Mrs. Saulnier was competent for the limited purpose for which it was admitted. It follows that the entry must be
Exceptions overruled.