Eaton v. Sloan

Where a plaintiff is an inhabitant of this state, the endorser of his writ undertakes to pay the costs for which the defendant may have judgment, in case the plaintiff neglects, avoids, or is unable to pay the costs, and such neglect, avoidance, or inability, appears by an officer’s return upon an execution issued against the plaintiff.(l)

As a plaintiff, who lives in the state, may in all cases endorse his own writ, it seems to us reasonable that before a third person who may have endorsed a writ in such a case is charged, the party who seeks to charge him, should shew a strict compliance with all the requisitions of the statute. One of these requisitions is, upon a fair construction of the statute, an execution against the plaintiff. But when the plaintiff dies pending the suit, no execution can issue against him, and we are of opinion that in such a case the endorser of the writ is discharged.

Judgment for the defendant.