
    David Kingsbury v. Noah Cooke.
    The indorser of a writ is liable, though a set-off was pleaded in the original action.
    An indorser of a writ cannot, upon scire facias against him, avail himself of any thing which goes to show that there ought not to have been judgment for the defendant in the original action.
    This was a scire facias against defendant, as indorser of writ, Jesse-v. plaintiff, to recover costs taxed for plaintiff, who was defendant in that suit, S. C. May Term, 1806.
    Defendant pleaded, -—
    1. That an offset was filed in the cause, Jesse-v. David Kingsbury, by defendant, and that this is a waiver of remedy against indorser; because the set-off may have occasioned the recovery of costs, and not the want of merits in the cause of action.
    2. That, Nov. 16, 1804, while the action, Jesse-v. David Kingsbury, was pending in Superior Court, the parties in that suit settled and adjusted all demands between them, including the action pending, and executed mutual discharges; and David Kingsbury then and there paid to Jesse-$35, in full satisfaction and discharge of said action, which the said Jesse then and there accepted accordingly, and the action, by agreement of said parties, was to be dismissed, i. e. nonsuit and default [?].
    Demurrer and joinder.
    
      Newcomb, for plaintiff.
    
      Cooke, for himself.
   Pee Curiam.

The statute, ed. 1805, p. 88, contains no exception for the case of set-offs. The indorser is bound to pay all the costs that plaintiff [defendant] shall recover in the action. The indorser must be supposed conusant of the law, as he was himself a lawyer; and of the defendant’s right to plead a set-off.

The second plea goes to show that no judgment should have been rendered. It is enough for us to know that a judgment was, in fact, rendered for the defendant. We cannot, on this scire facias, inquire into the merits of that judgment.

Judgment for plaintiff.  