The opinion of the Court was drawn up by

This action is case under the statute c. 114, <§>18, against the defendants as indorsers of a writ in which one Martha Robinson was plaintiff, and said Crossman a defendant, who obtained a judgment in that action for his costs. It is only as indorsers, that it is insisted they are liable; and it does not appear that they were parties to any contract, excepting so far as it resulted from the acts of placing their signatures upon the writ, by the procurement of the plaintiff therein named. The names are appended to nothing like an agreement, and it was intended as an indorsement, such as the statute refers to in relation to certain writs and petitions.

The indorsement of a name upon the back of a writ, by one not a party thereto, can have no effect independent of the provisions of the statute; of itself it manifests no intention of the indorser, which can be understood. But the Rev. Stat. c. 114, $ 16, provides, that in certain writs and processes therein mentioned, when the prosecuting party is not an inhabitant of the State, the writ, petition, or bill shall be indorsed by *43some sufficient person, who is an inhabitant of the State; and by section IT a power in the Court is implied to order an in-dorser on motion of the other party, when one or more plaintiffs or petitioners lire in the State, and another may not be an inhabitant of the State; and by section 19, if pending the suit or petition any indorser, should in the opinion of the Court, be deemed insufficient, they may require that a new indorser should be furnished, who is sufficient, the defendant consenting that the name of the original indorser should be struck out. In no other case does the statute require an indorser, or authorize the Court to order an indorser upon any writ or other process. By the 18th section “ every indorser shall be liable in case of the avoidance or inability of the plaintiff or petitioner to pay all such costs as shall be adjudged against the plaintiff.” The 16, 17 and 19th sections having pointed out all the cases, where an indorsement is necessary, the legislature could not by any construction have contemplated, any other, when an indorsement would be made.

The two former sections would be wholly unavailing, were it not for the provisions of the 18th section, which immediately follows, defining what the liability of indorsers shall be. Where the last section prescribes under what state of facts that liability shall attach to the indorsers, it must refer to such indors-ers only as the same statute requires. It follows, that if a stranger to a suit voluntarily puis his name upon the back of the writ, when the statute does not require it, and vests the Court with no power to order it, he can be no more liable to pay the costs, which may be recovered against the plaintiff, in case of avoidance or inability of the latter, than he would be, if he placed his name upon the back of the execution recovered, or bond, which might be taken upon the arrest of the debtor therein.

Is it otherwise, where the Court do not order it, but impose it as a condition upon which some other order which they may make or withhold, is granted ? The Court, in the exercise of its discretion, sustain a motion on terms; the terms being conditional are sometimes complied with at once, as the payment *44of a certain sum in costs; or there may be a restriction as to recovery of costs, which is duly entered, and every thing touching the order and its conditions is done. We cannot presume, that the Court would intentionally impose a condition, which would be attended with no benefit to the party supposed to be placed in a situation, better than he would be, if the order prayed for was granted without terms, but if the terms required were a certain act, which it was believed by the Court, and the parties, and even the one, who performed it, would create a liability, when if done voluntarily, could have no effect, it certainly can have no greater effect, on account of its being done, by an order of Court, merely as the terms necessary to obtain the object sought. If an action upon a note of hand, which had been disposed of by default, should be restored to the docket to be tried, by the order of Court, on the condition, that some responsible person should give his verbal promise to pay the amount of the note, in case of a recovery by the plaintiff, it could not be contended that upon such a promise, given, it could be enforced. The defendants are not legally liable in this action, and according to the agreement of the parties, the plaintiff must become nonsuit.