#### Jepthah R. Hartwell *versus*Artemas Hemmenway.

To *indorse*means to put a name on the back of a paper.

Therefore where in a *scire facias*brought to recover *costs*against the indorser of a writ, the defendant pleaded that he did not indorse his name *on the back*of the writ, concluding with a verification, and the plaintiff replied that the defendant did indorse his name on the writ, and the defendant demurred specially, assigning for cause the omission of an averment that the indorsement was *on iht back*of the writ, which it is required to be by *St.*1784, c. 28, § 11, the replication was held sufficient, to indorse meaning the same as to indorse on the back.

Where this Court orders a new indorser of a writ, under St. 1784, c. 28, § 11, in an action originally commenced in the Common Pleas, an indorsement on the office copy of the original writ filed in this Court, is sufficient to bind the indorser, without any indorsement of the original writ in the court below.

A new indorser of a writ, who is substituted for the original indorser, is liable for all the costs recovered against the plaintiff, arising from the commencement of the action, not merely for those accruing subsequently to the indorsement.

A conclusion of a replication with the words,c< of this he puts himself on the country,” instead of “ this he prays may be inquired of by the country,” is informal Where a replication was demurred to specially for this informality, the Court al lowed the plaintiff to amend without any terms.

Scire facias against the defendant as indorser of a writ in a suit brought by Joseph Hemmenway against Hartwell, in which Hartwell recovered judgment for costs, in this Court, against the then plaintiff.

The defendant pleaded, — 1. That he did not indorse his name on the back of the original writ; tendering an issue to the country ; which issue was joined by the plaintiff:—

2. The same plea, concluding with a verification. To this plea the plaintiff replied that the defendant “ did indorse his name on the original writ mentioned and described in his wrii *123of *scire facais,*and of this he puts himself upon the country.” The defendant demurs specially to this replication,—1. Because the replication does not answer the whole plea, for it merely alleges that the defendant indorsed his name on the original writ, instead of alleging that he indorsed it on *the back of*the original writ:—2. Because the issue tendered by the replication is too narrow, in not averring the indorsement to be *on the back of*the original writ: — 3. Because the issue tendered is not on the whole of the allegation or traverse in the plea, but only on a part of it: — 4. Because the issue tendered is of an immaterial fact, whether the defendant indorsed his name on the writ, instead of the material fact, whether he indorsed it *on the back of*the writ: — 5. Because the replication is an admission that the defendant’s name was not placed *on the back*of the writ: — 6. Because the plaintiff is guilty of a departure in not averring in his replication, that the indorsement was made *on the back*of the writ, which he has averred in his declaration :—7. Because the conclusion is informal in saying, t£ *of this he puts himself on the*country,” language proper for the defendant only, instead of ££ *this he prays may be inquired of by the*countrythe established form : — 8. Because the replication makes no direct and substantive allegation as an answer to the plea, and yet does not offer to prove or verify it, or pray that it may be inquired of by the country, or the Court, or any other tribunal. The plaintiff joins issue on the demurrer : —

3. That there is no record of the indorsement of the writ by the defendant; concluding with' a verification; to which the plaintiff replies that there is such a record, which he is ready to verify by the record, &c. : —

4. That the defendant ought to be liable as indorser for only a part of the costs, *viz.*47 dollars and 29 cents, because the original writ was at first indorsed by Joseph Hemmenway, and the action having been carried by appeal from the Common Pleas to the Supreme Court, this Court, at October term 1825, ordered Joseph Hemmenway, the then plaintiff, to procure a new indorser, and the present defendant, on February 26, 1826, indorsed his name on the original writ at the request of Joseph, and that the costs accruing subsequently to the in*124dorsement, are 47 dollars and 29 cents and no more. Tt this plea the plaintiff demurs generally.

*Oct. 18th.*

*April term*1829, *at Concord.*

*Morey,*for the defendant,

produced the original writ, which had not the defendant’s indorsement upon it, and said that the plaintiff must lose the case on the first issue to the country. It is true that his. name is indorsed on a *copy*of the original writ in this Court, but that is not what is required by the statute. An award *annexed*to a lease, is not a compliance with an agreement to have it *indorsed. Montagu*v. *Smith,*13 Mass. R. 404. The defendant’s liability, being created by statute, must be construed strictly, and cannot be extended by construction.

With regard to the demurrer to the replication to the second plea, he contended that *indorsed*did not mean the same as *indorsed on the back*j and also that the conclusion was informal. He cited 1 Chit. PI. 509, 510, 596, 615, 617, 618.

As to the fourth plea, he contended that the defendant was only liable for those costs which accrued after the indorsement was made, as a cognizor in a recognizance on an appeal, is only liable for future costs.

*Hoar*and *Butler,*for the plaintiff,

said the copy was the writ in this Court. *Original writ*in the statute is only used to distinguish it from an execution or other judicial writ, not from a copy. The question on the fourth plea is settled by the statute, which makes the new indorser answerable *“*in ■ the same manner as if the indorsement had been made before the writ was served.” *St.*1784, c. 28, §11.

Morey, in reply,

said it was true that the new indorser was liable in the same manner, as the original indorser, that is, on a *scire facias,*but it does not follow that he is liable to the same extent.

The opinion of the Court was read, as drawn up by

Parker C. J.

The whole merit of the pleadings which have ended in the joinder in demurrer to the replication to the second plea, depends, we think, upon the legal meaning of the word *indorse*as used in *St.*1784, *c. 28, §11,*in which it is enacted, that all original writs shall, before *they*are served, be *indorsed on the back thereof by*the plaintiff &c. If the word *indorse, ex vi termini,*means putting a name on the back oí *125any instrument or paper, then the addition of the words on “the back thereof” are wholly useless, and are mere surplusage. And we are of opinion that such is the meaning of the word *indorse,*when used popularly or technically, so that the plaintiff’s averment that the defendant did indorse the writ, comprehends the whole force and meaning of the whole phraseology used in the statute, and is a sufficient answer to the defendant’s plea in that respect. Of course all the causes of demurrer specially set down in regard to this matter must fail.

In regard to the fourth plea, which is demurred to by the plaintiff, it is bad in substance, because a new indorser who comes in upon order of the Court, because the plaintiff or former indorser has departed from the Commonwealth, is substituted for the first, and his liability is coextensive with that of him whose place he takes. Such has always been the practical construction of subrogation, as it may be termed, and it was undoubtedly the intent of the legislature that the party so representing the original indorser should be liable from the beginning of the suit. The words of the act are, “ such new indorser shall be held in the same manner as if the indorsement had been made before the writ was served.”

On the question arising upon the plea of *nul tiel record,*we are called upon to decide, whether placing the name of the defendant on the copy of the original writ filed in this Court, is an indorsement within the meaning of the statute. The statute requires that a new indorser shall be procured; the defendant offers himself for that purpose ; the original is in another court; he signs his name on the copy, which becomes part of the record or files of the Court. By so doing he becomes the new indorser in the same manner and to the same extent as if he had gone to the-clerk’s office and there put his name on the original. He has used the copy as the original, and ought to be bound by his voluntary act. The clause in the statute, that the agent or attorney who shall so indorse his name on the original writ shall be liable in case of avoidance, has reference to an original indorsement.

In regard to the plaintiff’s replication to the first plea, in which he tenders the issue in the form proper for the defendant *126and not for the plaintiff, this is probably a professional in actvertency, which would have been instantly cured on suggestion, It is however pointed out as one of the causes of demurrer, and we must therefore consider it in a technical view. In modern times such nicety is very rare. Such an issue, joined by the defendant by a “ similiter,” would have been good, —■ the sense of the thing being the same whether the plaintiff puts himself on the country, or prays that the matter may be inquired of, &c. It is even something less than form, it is a ceremony ; and yet we are hardly willing to say judicially that this conclusion is good in law, for it is well to preserve these formulas in legal proceedings. Mr. *Dane,*in his Abridgement, c. 181, *art.*3, has some sensible remarks on this subject, which he concludes with observing,— “However, as it is essential to preserve the *forms of good pleading,*as the essence and marrow of the law, the best lawyers and judges have always been attentive to this branch of the law, and though *trifling matters of form*have of late years been less regarded, yet more *material matters of form*have been always considered as well deserving of attention.” Under our statute of *jeo failes,*as it may be termed, (1784, c. 28, § 14), the Court is authorized to order any amendment of matters of form,1 and considering this as ah error of the slightest kind, we give leave to the plaintiff to amend without any terms, and the defendant may thereupon join the issue tendered, if he sees fit.

1

 This power of the court to allow amendments, is now extended to matters of substance. See Revised Stat. c. 100, § 22.