BENWAY v. WOOD, 66 N.H. 326 (1890)

20 A. 981


Supreme Court of New Hampshire Sullivan.
Decided June, 1890.

The indorser of a writ returnable before a justice of the peace is not liable to pay a judgment for costs recovered by the defendant against the plaintiff on a complaint under the statute for not entering the action.

APPEAL of the defendant, Wood, from a judgment of a justice of the peace, charging him, in scire facias, as indorser of a writ in an action brought against the plaintiff, Benway, by Propre
Co., residents of Vermont. Facts agreed: Propre Co. did not enter their action, and, on complaint filed by Benway for costs, the justice, without notice to Propre Co. or to Wood, rendered judgment for costs against Propre Co. in favor of Benway, and upon scire facias charged Wood with the amount of that judgment.

S. L. Bowers, for the plaintiff.

Wait Chellis and Davis Enright, for the defendant.


At least one fatal objection lies at the very threshold of this case. The defendant’s liability as indorser of the original writ extended only to the costs which might be recovered in that action. None have been recovered. The complaint for costs was an original and independent proceeding, in which the defendant was a stranger, and to which his liability did not extend. Other questions raised by the case and discussed by counsel are therefore not considered.

Appeal sustained.

DOE, C. J., did not sit: the others concurred.