Haverhill Insurance Company v. Prescott

Assumpsit, to recover of the defendants assessments upon their premium note given for a policy of insurance. The defendants were set up in the writ as “ Edward P. Prescott and J. Harvey Philbrick, of Candia, in the county of Rockingham and State of New-Hampshire, now or formerly co-partners in business under the firm name and style of Prescott & Philbrickthe plaintifis as “the Haverhill Mutual Eire Insurance Company, a corporation established by the laws of the Commonwealth of Massachusetts, and having its usual place of business at Haverhill, in the county of Essex and Commonwealth of Massachusetts.” On the hack of the writ were the following indorsements: “ Haverhill Mut. Eire Insurance Company v. Prescott & al.” “ Samuel Dudley, Agt.” “ Office of H. N. Merrill, Haverhill, Mass.”; and there was no other indorsement thereon.

The attorneys for the defendants moved the eourt to quash the writ, because it was not indorsed in the manner required by our statute, which motion was overruled by the court. The defendants excepted, and filed this bill of exceptions, which was allowed by the court.

A. Wood, (with whom were Kittredge Merrill) for the plaintifis.

By the 17th section of chapter 182 of the Revised Statutes, [Comp. Laws 465] it is provided that “ all original writs shall, before they are served, be indorsed on the back thereof by the plaintiff, his agent, or attorney, being an inhabitant of this State; and if the plaintiff is not an inhabitant of this State, by some responsible person who is such inhabitant.”

The present action was entered at the November term, 1858, of the Court of Common Pleas for this county, and at the subsequent April term, 1859, the defendants moved to quash the writ for the want of a sufficient indorsement. The court overruled the motion, and the defendants excepted. Is their exception well taken ? It seems to us clearly not.

It is not necessary to decide, in this case, whether a motion to quash, for the want of any indorsement apparent upon the writ itself, should be made at the first term, and within the first four days of that term, under the rule relating to pleas in abatement, on the ground that matters in abatement are to be taken advantage of in the same time by motion, as by plea, as has been contended by the counsel for the plaintiffs. Upon an inspection of the writ it appears that there is indorsed upon the back thereof the name of Samuel Dudley. It makes no difference that the letters, “Agt.,” are added to that name, indicating that he claimed to be the agent of the plaintiffs, or of somebody else. If necessary, those lettei’s would be held a mere matter of description, and he would be personally bound. Pettengill v. M’Gregor, 12 N. H. 179; Woods v. Blodgett, 15 N. H. 569; Brackett v. Bartlett, 19 N. H. 129.

The writ, then, having the name of Samuel Dudley written upon its back, was prima facie well and sufficiently indorsed, and the motion to quash it was properly denied, as the court will abate an action, upon motion, only when the abatable defects are apparent upon the writ itself. If tbe defendants relied upon tbe fact that Samuel Dudley was not tbe name of a person, that be was not an inhabitant of tbis State, that bis name was not placed upon tbe back of tbe writ by bimself, or by bis authority, or that be was not a responsible person, they should have pleaded the supposed defect in abatement, so as to have given tbe plaintiffs an opportunity, by tbe proper replication, to have raised an issue upon any traversable objection to tbe indorsement. Jacobs v. Mellen, 14 Mass. 134; Hawkes v. Inhabitants of Kennebunk, 7 Mass. 461; Purple v. Clark, 5 Pick. 206.

Tbe exceptions taken to tbe ruling of tbe court below must, therefore, be overruled, and the judgment of tbe court below, on tbe point in controversy, be affirmed.