<p>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.</p>
Decided 1826-03-15
Parker C. J.
¶1said, 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 ;1 and as agent or attorney, we think Mr. Peabody would be liable.2 It would be an induce*443ment 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.
