Sawtelle v. Wardwell

56 Me. 146

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1868
• Status: Published

Opinions

Danfoetii, J.

The only question raised in this case, is as to the sufficiency of the indorsement of the writ, and it is admitted that it is properly indorsed as required by law in all respects, except as to the signature used. In this respect the surname only is put upon the back of the writ, while it is contended that there should be both surname and Christian name. The early provincial statute provided, that the surname should be sufficient. Subsequently it was changed and the Christian name was also required. Still later, another change was made and the statute adopted as it now stands, simply requiring, in certain cases, an indorsement, making no provision as to the mode in which it should be made. R. S., c. 81, § 9.

The object of the statute is to afford a security to the defendant for his costs, in case the -suit should fail. The indorsement, then, is simply a contract by which the indorser becomes liable to the defendant for such costs, and is to be construed by the same rules as are applicable to other contracts. In the absence of all statute provisions regulating the form of signature, it is left to the general principles of the common law. By these rules, "a person may become bound by any mark or designation he thinks proper to adopt, provided it is used as a substitute for his name, and he intends to bind himself.” Brown v. Butchers’ Bank, 6 Hill, 443. In Cooper v. Bailey, 52 Maine, 230, it was held that, an indorsement of a note " with the surname of the payee must be deemed valid.” If such a signature would bind the indorser of a note, we seé no reason why it should not be equally valid upon a writ.

Exceptions sustained.

Defendant to answer over.

Appleton, C. J., Cutting, Walton and Barrows, JJ., concurred.