REID v. BLANEY.
The remedy against the indorser of a -writ in case of the avoidance of the principal, under Stat. 1784; ch. 28. [Slat. 1821, ch. 59, sec. 8.] is by scire facias, and not by action of debt.
Debt does not lie upon a conditional or collateral undertaking.
Thjs was an action of debt against the defendant as indorser Of an original writ sued out by one Dickey against the present plaintiff; in which suit judgment was rendered in favour of the then defendant for his costs. The declaration alleged the judgment, the due issuing of execution, and the officer’s return thereon, shewing the avoidance of Dickey, and averred the liability of the defendant for the costs, as indorser of the original writ, pursuant to the statute* To this the defendant put in a general demurrer.
Allen and Bellard, in support of the demurrer.
The nature of the defendant’s liability as indorser of the' writ, is wholly conditional and collateral. On stích an undertaking debt will not lie. 1 Chitly Plead. 93, 106. Bishop v.' Young, 2 Bos. fy Pul. 81.
Nor is the engagement under seal; and therefore debt will not lie upon it, for the same reason that it will not upon a statute-staple. i Chitly Plead. 1-04: Shep. Touchst. 353.
And it is not matter of record. The stipulation of the defendant is wholly in pais. His signature may have been pla'ced on the writ wd-thout his consent, or it may be the handwriting of another person of the same name ; and the genuineness of the signature is a fact which may well be put in issue to the jury.But no plea which is admissible to an action of debt on a record, would let him in to this proof. Nil debet would be á confession of the signature. 1 Chilly Plead. 475 — 6.
*129Nor was the sura certain. The remedy under this statute in Massachusetts has always been sought by scire facias. Ruggles v. Ives, 6 Mass. 494, Miller v. Washburn, 11 Mass. 411.
Orr and Reid, pro se.
The Stat. 1784, ch. 28,'gives a remedy against the indorser, in case of the avoidance of the principal, but does not prescribe the form of action. But in a case strictly analogous to this, viz. against the indorser of a writ of audita querela — the remedy is expressly given by an action of debt, by Slat. 1781, ch. 48. So far therefore as the intent of the legislature can be ascertained, the mode of remedy in the Stat. 1784, may be understood to be referred to that'already existing .in the like case under Stat. 1781.
But if the legislature has indicated no remedy, the common law will furnish one. Smith v. Drew, 5 Mass. 515. And the proper remedy is debt, because the money is reduced to a sum certain by the judgment, and it appéars to be due by the evidence of a court of record. 2 Bl. Com. 464 — 5. The undertaking of the defendant is no otherwise collateral or contingent than is that of bail, against whom debt lies, as well as scire facias. The case may be compared with that of Jeffrey v. The BluehiU turnpike corporation, 10 Mass. 371, where the statute having made the defendants liable for all damages occasioned to any owner by laying the turnpike through his land, an action of debt was sustained for the amount awarded by the Sessions to the plaintiff, under the provisions of the act.
Mellen C. J.
delivered the opinion of the Court.
The only question raised by the demurrer is whether debt< is the proper action.-
It is admitted that in Massachusetts the action of debt is no.t used; but in all the reported cases the process was scire facias. No objection was made to that mode of proceeding; on the contrary 'the Court, in speaking of the scire facias, seem to com sider it as the usual and proper process.
But there seems to be an objection, on principle, to an action of debt. The undertaking of an indorser of a writ is in its nature conditional; dfepending on the avoidance or inability of *130the plaintiff; of which certain statute proof is required; and it is also a collateral undertaking by one man for the conditional payment of the debt of another. It seems to be settled that on such an undertaking or promise an action of debt will not lie. To this point see Chilly on Pleading, 94, 106.
The statute respecting the writ of audita querela, has provided that such writ must be indorsed ; and that an action of debt may be brought against the indorser. This is a special provision in that particular case only.
We are therefore of opinion that this action cannot be maintained and there must be
Judgment that the declaration is insufficient.