The opinion
Kent, J.,
dissenting.—If the doctrines of the common law in relation to signatures on contracts are to be applied in this case, the argument of Mr. Drummond is conclusive. But I do not think that the law, in relation to the indorsement of a writ, ever intended to make any name, mark or initials, or nick-name, or assumed designation, which might hold a party on a note or contract, a sufficient indorsement. The statute of 1821 required that the Christian and surname should be indorsed. The change of phraseology was not intended to change the rule so that any mark should be sufficient. As I understand the requirement of the statute, it is that some sufficient inhabitant of the State shall so place his name on the writ, that the other party, in case of avoidance, or inability of the plaintiff to pay the judgment for costs, may have an action and sustain it without being compelled to seek extraneous proof to show what person was intended by the indorsement. He is not to be put to the trouble or expense of hunting up proof to show who indorsed the writ. The indorsement in this respect should itself identify the person. A man indorses the name of " Smith” on the back of a writ. Must the defendant go about to find out which of that multitudinous family in fact put their name there.
*149 It may be entirely just and right to hold a man who puts any initial or abbreviation, or nick-name on his contract, where the question is between him and another party. If a party accepts a contract thus signed, he knows it at the time, and he accepts it, cum onere of proving who did it. But in case of an indorsement of a writ, the defendant is no party to the transaction, — has no power to reject it as imperlect or insufficient. He can only object after entry, and it is a statute requirement to make the writ perfect. Would it be sufficient for a clerk to sign a writ "Fessenden.” No one would pretend that official acts of any kind can properly be signed by the surname only, — as selectmen or commissioners.
It seems to me plain, that when the statute requires that a person should indorse a legal process to make it valid, he must so indorse it that the other party may have the benefit of it without being obliged to run the risk of being able to prove facts aliunde, to fix the liability on a particular person because he has not so identified himself by his indorsement.
The suggestion, that the plaintiff will lose his debt if the ruling is sustained, if true, cannot control the law. But see § 102, c. 81, which saves his right to commence anew in cases there named.
The xvm rule of construction, c. 1, R. S., gives this as a rule regulating signatures, when required by law,—"when the signature of any person is required, he must write it or make his mark.” Here it was required by statute that he should put his signature on the writ. Can it mean anything less than his Christian and surname.
Dickerson and Tapley, JJ., concurred.