
    Ebenezer Chadwick versus Samuel Upton and Trustees.
    An original writ prosecuted by an individual was indorsed thus — “ A. B. by C. D. his attorney.”—Held, that the attorney had thereby made himself responsible for the costs which the defendant should recover, and consequently had disqualified himself to be a witness on the part of the plaintiff.
    Assumpsit. On the trial, Mr. Peabody being offered as a witness on the part of the plaintiff, the defendant objected to his competency, on the ground that he was the indorser cf the writ, and so responsible for the costs in case the defendant should prevail. The writ was indorsed, “ Ebenezer Chadwick, by A. Peabody his JltVy.’1’’ The judge overruled the objection, and admitted the witness ; and a verdict being found for the plaintiff, the defendant moved for a new trial.
    
      Blair and Bliss, in support of the motion,
    cited St. 1784, c. 28, § 11; Middlesex Turnp. Corp. v. Tufts, 8 Mass. R. 266; Gilbert v. Nantucket Bank., 5 Mass. R. 97; Caldwell v. Lovett, 13 Mass. R. 422; Ely v. Forward, 7 Mass. R. 27. In this last case it is said, “ every original writ must be indorsed, either by the plaintiff or bis attorney.” This writ was not, in fact, indorsed by the plaintiff; it must therefore be considered as indorsed by his attorney.
    
      Peabody, for the plaintiff.
    Where the attorney indorses the writ himself, the defendant has a cumulative remedy, the attorney, as well as the plaintiff, being responsible for costs. But the statute does not intend, that where he puts his name on the writ, as in this instance, evidently meaning to bind the plaintiff alone, he shall be liable himself, when in signing a promissory note in a similar manner he would not be responsible. It may be objected, that the attorney might thus indorse the writ when the plaintiff is out of the State ; but the answer is, that then, according to the statute, the indorsement would be insufficient. In Middlesex Turnp. Corp. v. Tufts, the plaintiffs being a corporation, the statute could not be complied with except by an indorsement by an agent. Suppose that the attorney, by the plaintiff’s direction, had written the plaintiff’s name alone on the back of the writ, would not that have been the plaintiff’s indorsement ?
   Parker C. J.

said, in substance, that the Court were of opinion that Mr. Peabody must be considered as the indorser, and so not a competent witness. The statute says, that the plaintiff’s agent or attorney, who shall indorse his name upon an original writ, shall be liable in case of the avoidance or inability of the plaintiff to pay the defendant such costs as he shall recover ; and as agent or attorney, we think Mr. Peabody would be liable. It would be an inducement to commence actions, if when the plaintiff was out of the commonwealth, the attorney might put the plaintiff’s name on the writ, and be free himself from responsibility for costs. An ingenious argument might be made on either side, but we think convenience preponderates in favor of holding the attorney liable ; although, for the sake of justice, this might likewise be considered as the indorsement of the plaintiff.

JVeio trial granted. 
      
       See the provisions made concerning the indorsement of write, in Revised Stat, c, 90, § 10 to 13.
     
      
       See Davis v. M'Arthur, 3 Greenl. 27; How v. Codman, 4 Greenl. 79; Harmon v. Watson, 8 Greenl. 286.
     