Ingraham v. Cook

1 Super. Ct. Jud. 4

• Court: Massachusetts Supreme Judicial Court
• Decided: August 15, 1762
• Status: Published

Opinion

But

the Court

ruled, that a new Indorser ought to be found in every Case where it could be made to appear to the Court that there was Danger the present Indorser could not answer Costs. But a Witness was produced who knew the Plaintiff to have a considerable Sum of Money at Interest; upon which the Motion was silenced. (¹)

1 (1) The Prov. Sts. of 1 Geo. 1 and 1 Geo. 2 (Anc. Chart. 406, 466) provided for the indorsement of all writs by the plaintiff or attorney, but contained no provision for finding a new indorser in any case. The St. of 1784, c. 28, provided in addition, that where the plaintiff was not an inhabitant of the State, he should procure a sufficient indorser who was, and also that where the writ was indorsed by plaintiff’s attorney, if such attorney was shown to be of insufficient ability, a new indorser should be ordered. This act was repealed by St. 1833, c. 50, which contains the provisions substantially reënacted by the Rev Sts. c. 90, § 10, (Gen. Sts.; 123, § 20; c. 129, § 29,) viz., making the indorsement a condition precedent only where the plaintiff is not an inhabitant of the State, and giving the Court discretionary power to require it wherever it appears reasonable. But it seems that mere poverty of the plaintiff will not be considered sufficient cause for such requirement, in the absence of vexation or oppression. Per Shaw, C. J., 21 Pick. 212. An indorser will be required where the plaintiff removes from the State during the pendency of the action. 8 Mass. 272. 1 Gray, 114. But the removal of a foreign plaintiff into the State does not have the effect to discharge the indorser. 8 Met. 149.