
    John Fairbanks, Jun., versus Alexander Townsend, Esq.
    An endorser of an original writ is not answerable to the defendant for costs taxed for him pursuant to the stat. 1803, c. 155, § 5, where the plaintiff having appealed, recovers judgment for a less sum than fifty dollars, and costs are given to the defendant
    This was a writ of scire facias, brought against the defendant as endorser of a writ, heretofore sued out by one Leonard Lewis against the now plaintiff, in which action Lewis having recovered less than fifty dollars damage, upon his own appeal to this Court, Fairbanks had judgment for his costs, pursuant to the statute of 1803, c. 155, § 5.
    It being agreed that Lewis had been committed in execution for the said costs, had been discharged on taking the poor debtor’s oath, and was unable to pay, the parties to this scire facias submit ted to the decision of the Court on the following questions, viz.: — 1. Whether an endorser of a writ was liable for the costs recovered by a defendant in such a case. 2. Whether a scire facias lies against an endorser of a writ - recovered by a defendant. 3. Whether, in the original action, the now plaintiff was entitled to judgment for his costs.
    If, on either of these questions, the opinion of the Court should be with the defendant, the plaintiff agreed to become nonsuit: otherwise the defendant agreed to be defaulted ; and judgment was in either case to be rendered accordingly.
    * Whiting for the plaintiff.
    
      Townsend pro se.
    
   By the Court.

The last question cannot come before us in this action. If the judgment was wrong, a writ of error must be brought to reverse or correct it.

By the provincial act of 13 Ann, c. 1, the attorney endorsing a writ was liable, if the principal was out of the province or unable to pay, for the costs arising to the defendant by his arrest, and charges of imprisonment, in case the plaintiff discontinued, became nonsuit, or that judgment passed against him.

The statute of 1784, c. 25, which is a revision of former laws on the same subject matter, enacts in the sixth section that the plaintiff’s agent or attorney, who shall endorse his name on the writ, shall be liable, in case of the avoidance or inability of the plaintiff, to pay the defendant all such costs as he shall recover, and to pay all prison charges that may happen, where the plaintiff shall not support his action.

Now, in this case, the plaintiff did support his action ; but notwithstanding this, the law has made him liable to costs, as a penalty for bringing his action by appeal to this Court. The endorser of the writ is not answerable in such a case.

Plaintiff nonsuit.  