
    Aaron Caldwell versus Benjamin Lovett.
    An attorney, who has indorsed an original writ, cannot afterwards be discharged, and another substituted in his place, without the consent of the defendant in the action.
    Assumpsit by the'promissee against the maker of a promissory note. The note was described as dated the 23d of November, 1812, for $ 66-50, payable in six months with interest. There was also a count on an indebitatus assumpsit for labor ; and another count for money had and received.
    The cause was tried upon the general issue, before Putnam, J., at the last February term in this county. To prove the note, (which the plaintiff suggested had been fraudulently obtained by the defendant without payment,) the plaintiff offered J. J■ Fiske, Esq., as a witness. The defendant objected to his admission, as he was the indorser of the plaintiff’s writ. It was then moved by the plaintiff, * that Mr. Fiske’s name should be erased from the writ, and that the plaintiff should be permitted to substitute the name of J. Richardson, Esq., a counsellor of this Court, for that of Mr. Fiske. This motion was granted, the objection of the defendant being, overruled, and the substitution of Mr. Richardson’s name for that of Mr. Fiske was then made in Court.
    Mr. Fiske was then sworn, and upon his testimony the judge directed a verdict for the plaintiff, subject to the opinion of the Court, as well upon the admission of Mr. Fiske, under the circumstances of the case, as upon the directions of the judge to the jury, upon the effect of his evidence. And if, on either point, the Court slxuid be of opinion for the defendant, the verdict for the plaintiff was to be set aside, and a new trial granted.
    
      Worthington, for the defendant,
    contended, that the statute, which requires the indorsement of original writs, and makes the indorser responsible for the costs, authorizes the change of indorser but in one case, and that upon motion of the defendant.  Indorsers not contemplated by the statute would not be responsible for costs. This Court, in the case of Ely & al. vs. Forward & al. 
       said, that it was out of their power to change an indorser without the consent of the defendant.
    
      Bigelow, for the plaintiff.
    The Court are judges of the compe tency of indorsers. They are expressly made so in the statute cite.i by the defendant’s counsel. The opinion relied upon in Ely & al. vs. Forward & al. was an obiter dictum of Chief Justice Parsons, the point not having been brought within the consideration of the Court by either party in the cause.
    
      
      
        Stat. 1784, c. 28, § 11.
    
    
      
       7 Mass. Rep. 25.
    
   Per Curiam.

An attorney, once having indorsed an original writ, cannot afterwards be discharged, and another substituted in his place, without the consent of the defendant in the suit; for he has acquired a right to his name, as a security for his costs. It is true, in the' case before us, that the security of the defendant was not diminished * by the change. But he cannot be compelled to give up that which he already has. The admission of Mr. Fiske as a witness, he having indorsed the writ, and thereby become eventually liable to the costs of the suit, makes it necessary that a new trial should be granted.

Motions to exchange indorsers of writs have been frequently overruled at nisi prius; and it is by no means desirable to increase the facility of admitting attorneys, who almost necessarily feel a bias in the suits they commence, to become witnesses in such causes.

New trial granted  