Proprietors of the Locks & Canals on Merrimack River v. Reed

Massachusetts Supreme Judicial Court

Proprietors of the Locks & Canals on Merrimack River v. Reed

49 Mass. 146

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1844

StatusPublished

This text of 49 Mass. 146 (Proprietors of the Locks & Canals on Merrimack River v. Reed) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Proprietors of the Locks & Canals on Merrimack River v. Reed, 49 Mass. 146 (Mass. 1844).

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Opinion

Dewet, J.

*

The defendants, by indorsing the writ, assumed the general liability of indorsers, and that liability is not discharged by the fact proposed to be shown, viz. that Melvin, the plaintiff in the original suit, removed into the State, and was a resident here at and before the termination of the suit. The right of a defendant to have an indorser furnished is not exclusively restricted to cases where the plaintiff is without the State. The only distinction is, that where the plaintiff is not an inhabitant of the State, the writ must, before the entry of the same, be indorsed by some sufficient person who is an inhabitant of the State. But the court may, on motion, in all cases where it shall appear to them to be reasonable, require the plaintiff to procure a sufficient indorser. Rev. Sts. c. 90, § 10.

Have the proper steps been taken to charge the indorsers i By the Rev Sts. c. 90, §11, “such indorser shall be liable, in case of the avoidance or inability of the plaintiff, to pay all such' costs as shall be awarded against the plaintiff.” Either avoidance or inability of the plaintiff is sufficient to charge the indorser.

It is contended by the defendants, that where there is no avoidance, there must be an actual commitment to prison, or no sufficient evidence of inability will be furnished. We think that is too restricted a principle, and that inability may be shown by proof of facts of the character of those here offered in evidence. The omission to arrest and commit Melvin was well justified, by the proceedings in bankruptcy then pending, and the transfer of his property to an assignee; and upon these facts oeing shown in aid of the officer’s return, the plaintiffs are enti[150]*150tied to a judgment against the indorsers of the original writ. The rulings at the trial were correct, and judgment is to be entered for the plaintiffs, on the verdict.

Hubbard, J. did not sit m tins case

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Dewet, J.

*

The defendants, by indorsing the writ, assumed the general liability of indorsers, and that liability is not discharged by the fact proposed to be shown, viz. that Melvin, the plaintiff in the original suit, removed into the State, and was a resident here at and before the termination of the suit. The right of a defendant to have an indorser furnished is not exclusively restricted to cases where the plaintiff is without the State. The only distinction is, that where the plaintiff is not an inhabitant of the State, the writ must, before the entry of the same, be indorsed by some sufficient person who is an inhabitant of the State. But the court may, on motion, in all cases where it shall appear to them to be reasonable, require the plaintiff to procure a sufficient indorser. Rev. Sts. c. 90, § 10.

Have the proper steps been taken to charge the indorsers i By the Rev Sts. c. 90, §11, “such indorser shall be liable, in case of the avoidance or inability of the plaintiff, to pay all such' costs as shall be awarded against the plaintiff.” Either avoidance or inability of the plaintiff is sufficient to charge the indorser.

It is contended by the defendants, that where there is no avoidance, there must be an actual commitment to prison, or no sufficient evidence of inability will be furnished. We think that is too restricted a principle, and that inability may be shown by proof of facts of the character of those here offered in evidence. The omission to arrest and commit Melvin was well justified, by the proceedings in bankruptcy then pending, and the transfer of his property to an assignee; and upon these facts oeing shown in aid of the officer’s return, the plaintiffs are enti[150]*150tied to a judgment against the indorsers of the original writ. The rulings at the trial were correct, and judgment is to be entered for the plaintiffs, on the verdict.

Hubbard, J. did not sit m tins case

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Bluebook (online)

49 Mass. 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/proprietors-of-the-locks-canals-on-merrimack-river-v-reed-mass-1844.