JOSIAH BUTLER vs. DAVID HAYNES, jr., 3 N.H. 21 (1823) - Opinion

Assumpsit, for money paid, laid out, and expended by the plaintiff for the use of the defendant, and on a promise by the defendant to indemnify the plaintiff for endorsing a writ at the defendant’s request, sued out in the name of John Eastman against T. S. Thrasher, and the defendant, D. H. jr. his trustee.

The cause was tried here, at September term, 1822, upon the general issue; when it appeared in evidence, that Butler endorsed the writ brought in Eastman’s name against Thrasher and trustee, at Haynes’ request, that in January, 1819, Thrasher recovered judgment against Eastman for $195 31 costs of suit; that execution issued against Eastman, August 10, 1819, and was returned “ nonesl inventus” to September term, 1819. After the return of the execution, a scire facias was brought against Butler, who voluntarily paid the said costs. It also appeared, that Eastman died in June, 1819. The defendant offered to prove, that the costs in the said execution had been overtaxed; but not offering to shew that this had been by the plaintiff’s fault, the court rejected the evidence, and a verdict was taken for the plaintiff, subject to the opinion of the court upon the above case.

The issuing of the execution against Eastman after his death, was an irregularity, for which it might, have been set aside; and the court would have been bound to set it aside, had Butler made application; in which case he would have been discharged as endorser. 6 D. & E. 368, Heapy vs. Paris.—2 Tidd's Practice 915, 1044.

But Butler could not call in question the regularity of the execution in the scire facias brought against him. 13 Johnson 378, Scott vs. Shaw.—16 ditto 117, Gillespie vs. White.—2 N. H. Rep. 491, Blanchard vs. Goss.

The question then is, was Butler bound to procure the execution against Eastman to be set aside, and thus discharge himself from his liability as endorser of the writ; and has he discharged Haynes by his neglect in this particular ?

In the first place, it does not appear that Butler was apprized of the irregularity. Had the execution issued before the death of Eastman, his death would not have discharged Butler; because in that event, the officer might have returned the execution not satisfied, which is all the statute requires. If Butler was liable as endorser of the writ, he was under no obligation to stand trial, in order to entitle him to an action against Haynes (4 Johnson 461, Sluby vs. Champlin.—13 ditto 58, Maurie vs. Heffernon); and if he paid the money bona fide, and without a knowledge of the irregularity in the issuing of the execution, his claim against the defendant is founded in strong equity. And we are of opinion, that although the execution issued irregularly, it was not a nullity, and that its validity cannot, be called in question collaterally in this action. 2 N. H. Rep. 491, Blanchard vs. Goss.—3 Caine's Rep. 267.—6 D. & E. 368. It appears in this case, that Butler endorsed the writ at the request of the defendant, that judgment was rendered against Eastman for costs, and that an execution issued against Eastman and was returned “ non est inventus” From these facts, it. appears, that Butler was liable, and it is not disputed that he paid the costs.

We are of opinion, that the plaintiff is entitled to retain his verdict, and that there must be