Fairbanks v. Townsend

8 Mass. 450

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1812
• Status: Published

Opinion

By the Court.

The last question cannot come before us in this action. If the judgment was wrong, a writ of error must be brought to reverse or correct it.

By the provincial act of 13 Ann, c. 1, the attorney endorsing a writ was liable, if the principal was out of the province or unable to pay, for the costs arising to the defendant by his arrest, and charges of imprisonment, in case the plaintiff discontinued, became nonsuit, or that judgment passed against him.

The statute of 1784, c. 25, which is a revision of former laws on the same subject matter, enacts in the sixth section that the plaintiff’s agent or attorney, who shall endorse his name on the writ, shall be liable, in case of the avoidance or inability of the plaintiff, to pay the defendant all such costs as he shall recover, and to pay all prison charges that may happen, where the plaintiff shall not support his action.

Now, in this case, the plaintiff did support his action ; but notwithstanding this, the law has made him liable to costs, as a penalty for bringing his action by appeal to this Court. The endorser of the writ is not answerable in such a case.

Plaintiff nonsuit.