
    Seth Miller versus James Washburn.
    An endorser of an original writ is liable to the defendant for his costs, although scire facias be not sued out within a year from the judgment
    This was a writ of scire facias, dated August 22, 1812, in which the plaintiff sets forth that, in May, 1807, he recovered judgment in this Court against one Earl Alden for the sum of 60 dollars 73 cents for his costs of a suit therein; that an execution issued on that judgment, upon which the said Alden was committed to jail, from whence he was afterwards liberated by taking the poor debt- or’s oath ; that the said judgment remains unsatisfied; and that the present defendant, as the agent and attorney of the said Alden, endorsed the original writ, whereon the said judgment was rendered by his Christian and surname, according to the statute; whereby ana because of the avoidance of the said Alden, the said Washburn 
      became liable to pay the said costs to the plaintiff, who was defendant in the said original suit.
    To this writ the defendant pleaded in bar of execution that, the said writ of scire facias did not issue against him within one year next after the rendition of the judgment mentioned in the writ; and this, &c., wherefore, &c.
    * The plaintiff demurred generally to this plea, and [*412 ] the defendant joined in demurrer.
    
      The defendant,
    
    a counsellor at the bar, being called on to support his plea, argued that an endorser of an original writ stood in the same relation to the defendant in the action that bail stands in to the plaintiff; and the same reason exists to limit the time of the liability of the former as of the latter. The plaintiff in an action may be sufficient to answer for the costs at the commencement of his action, but by misfortunes or other causes may become poor It is unreasonable that an endorser should be held beyond a certain period, in which he may have a chance for his remedy over.
    In the case of Ruggles & Al. vs. Ives, 
       the defendant pleaded two pleas to a scire facias like this, one of which was precisely the plea now before the Court; and there the chief justice, after de livering the opinion of the Court, directs judgment to be entered that both the pleas in bar were good.
    But if the plea is insufficient, so is the declaration, in that it does not allege the commitment of Alden to be by an officer .of the county; and this is a substantial defect, and good on general de murrer.
    
      Miller for the plaintiff.
    
      
       6 Mass. Rep. 494.
    
   Curia.

The defendant has attempted to support his plea by insisting on an analogy between the endorser of a writ and the bail in a civil suit; which latter is exonerated by the statute relating to bail, if the scire facias is not taken out within the time mentioned in his plea. But the analogy wholly fails, as in one case there is an express provision by statute, and in the other none.

The statute which provides for the liability of endorsers of original writs has fixed no time within which process'shall issue; and although it may be reasonable to establish a limitation beyond which such liability shall not continue, it is not for us, but for the legislature, to do it.

*The objection to the declaration, if available at all, [ *413 1 could only be so on special demurrer. The defect suggested is in form only, not in substance. Let judgment be enterei. that the plea in bar is bad and insufficient. 
      
      
        Stat. 1784, c. 10, § 3.
     
      
      
        Stat. 1784, c. 28, § 10
     
      
      
         Ruggles vs. Ives, 6 Mass. Rep. 494.
     