MISNOMER AND ADDITION.

THE names of men, at this day, are only sounds for distinction's sake, though perhaps they originally imported something more, as some natural qualities, features, or relations; but now there is no other use of them but to mark out the families or individuals we speak of, and to difference them from all others; since, therefore, they are the only marks and indicia of things which human kind can understand each other by, we must see what certainty the law requires herein, and what the effects and consequences are of the omission of the name, or false specification of the party; and this we shall do under the following heads:

(A) What Names are considered as the same.

(B) What Names and Additions are required by Law, and must be truly inserted: And herein,

1. Of the Difference between the Christian Name and Surname.

2. Of the Addition of the Estate or Degree.

3. Of the Addition of the Mystery.

4. Of the Addition of the Town, Hamlet, Place, or County.

5. Of Additions which are only Conveyances to the Action.

(C) Where the Name is truly put at first, and afterwards varied from.

(D) of the difference between a Mistake in Grants, Obligations, &c., and Judicial

Proceedings.

(E) At what Time the Mistake must be taken Advantage of, and how the same is salved.

(F) of the Manner of taking Advantage of and pleading a Misnomer or Want of Addition.

(G) Who may take Advantage thereof.

(A) What Names are considered as the same.

If two names are in an original derivation the same, and are taken promiscuously to be the same in common use, though they differ in sound, yet there is no variance; and therefore where Piers Griffith brought an audita querela, to which an outlawry was pleaded by the name of Peter Griffith, the plea was allowed; for it appears by acts of parliament, that Piers and Peter have been used promiscuously, as signifying the same person.

Cro. Ja. 225; 2 Roll. Abr. 135, Piers Griffith v. Hugh Middleton. See Lessee of Gordon v. Holliday, 1 Wash. C. C. R. 285; Henderson v. Ballentine, 4 Cow. 549; Waterbury v. Mather, 16 Wend. 611; Mead v. Haws, 7 Cowen, 332; Meredith v. Hinsdale, 2 Caines, 362; Griswold v. Sedgwick, 6 Cowen, 456; Donnelly v. Foote, 19 Wend. 148.g

So, Saunders and Alexander, Jane and Joan, Jean and John, Garret, Gerat, and Gerald, are the same names.

2 Roll. Abr. 135; Leon. 147.

But Ralph and Randall, Randulphus and Randalphus, Sibel and Isabella,

(A) What Names are considered as the same.

have been held to be distinct names; and so of others, in which there is a substantial variance in sound, original, and common use.

2 Roll. Abr. 135; Palm. 71; Shakespeare and Shakepeare are not id. son., 10 East, 83.

So, Agnes and Anne are different names; and therefore if one declare against J S, and Agnes his wife, and on the record of nisi prius it is Anne his wife, this is a material variance, and not amendable.

2 Roll. Abr. 135. Vide head of Amendment and Jeofail.

B Grautis and Gerardus are different names; so are Quartus and Gerardus. Mann v. Carley, 4 Cowen, 148.

When the name is a foreign one, and according to the pronunciation of the language in which such a name is, the sound is the same or nearly so, as Petris for Petrie, it is not a misnomer.

Petrie v. Woodworth, 3 Caines, R. 219.

If Nathaniel and Nathan are in common use as the same name, the fact may be proven to do away. the apparent misnomer.

Utsler v. Utsler, Wright, 627.7

If there are two English names that are distinct, and one Latin name for them both, such name shall serve for both; as Jacobus for James and Jacob, although two distinct English names.

2 Roll. Abr. 136; 3 Keb. 278; Mod. 107.

||The defendant being sued by the name of "Jonathan, otherwise John Soans," is no cause of demurrer to the declaration, for non constat that it is not all one Christian name.

Scott v. Soans, 3 East, 111.||

P. Baxter, a pauper known in the town of L by the name P. La Barron, in a notice from that town to the town of N, was called P. Labern, and N, after ascertaining what person was intended, returned an answer that P. Labern had not a settlement in N. Held, that the notice was insufficient. Lanesborough v. New Ashford, 5 Pick. 190. See 23 Pick. 57.

A mortgage was given by "E. H. 3d," to secure the payment of a note of like tenor with a previous note to "E. H." Held, that parol evidence was admissible to show that "E. H." and "E. H. 3d," were copartners under the firm of E. H., and that the note to E. H. was given for a partnership debt, and was the note mentioned in the mortgage.

Hall v. Tufts, 18 Pick. 455.

Where a seaman on board of a vessel was called "Lebrun," and "Lebring" and the administrator of "Lebering" claimed wages due to the latter, the court allowed him such wages, though no verson was among the crew known by the name of " Lebering."

Ketland v. Adm'r of Lebering, 2 Wash. C. C. R. 201.

A declaration stated that "E. Brown" was attached to answer, and then proceeded to allege the drawing of a bill of exchange by "Elisha Brown;" proof of a bill of exchange drawn by " Elijah Brown" was offered and refused.

Craig v. Brown, Pet. C. C. 139.

It was left to the jury to say whether a tax which had been laid against "Asahel Moss, 2d," was properly laid against "Asahel Morse," and the

(B) What Names and Additions are required by Law, &c.

jury having found that these names designated the same person, it was held that he was thereby sufficiently identified.

Litchfield v. Farmington, 7 Conn. 100.

A defendant may be sued on an instrument by the name he has signed, though differing in sound from his true name.

Meredith v. Hinsdale, 2 Caines, 362.

When three partners of the same surname sued as "John, Jeremiah and Daniel Chambers," it was held that though the surname was not added to every Christian name, as it ought to have been, yet that this was not

error.

Chance v. Chambers, 1 Penning. 384.

(B) What Names and Additions are required by Law, and must be truly inserted: And herein,

1. Of the Difference between the Christian Name and Surname.

If the Christian name be wholly mistaken, this is regularly fatal to all legal instruments, as well declarations and pleadings as grants and obligations; and the reason is, because it is repugnant to the rules of the Christian religion, that there should be a Christian without a name of baptism, or that such person should have two Christian names, since our church allows of no re-baptizing: and therefore if a person enters into a bond by a wrong Christian name, he cannot be declared against by the name in the obligation, and his true name brought in an alias, for that supposes the possibility of two Christian names; and you cannot declare against the party by his right name, and aver he made the deed by his wrong name; for that is to set up an averment contrary to the deed; and there is this sanction allowed to every solemn contract, that it cannot be opposed but by a thing of equal validity; and if he be impleaded by the name in the deed, he may plead that he is another person, and that it is not his deed. (a)

Cro. Ja. 558, 640; Owen, 107; Dyer, 279; 5 Co. 43; Poph. 57; Noy, 135; Cro. Eliz. 57, 222; {Willes, 554, Evans v. King. Vide 3 East, 111, Scott v. Soans; 2 Bos. & Pul. 466, Howell v. Coleman; Taylor, 148, Labat v. Ellis. Where a plaintiff in an action of trespass quare clausum fregit declared by the name of William Robinson, and the deed under which he claimed title to the locus in quo, was to William T. Robinson, the variance was held to be immaterial. 5 Johns. Rep. 84, Franklin and others v. Tallmadge.} [(a) But if plaintiff sues defendant by the name he subscribed to the bond, &c., and defendant pleads a misnomer, plaintiff may reply he is as well known by the one name as the other, and give in evidence the defendant's actual subscription by that name.] See Gould v. Barnes, 3 Taunt. 504. But whether a man is known in the world by a particular name, depends upon his having been called so, not merely upon one or two occasions, but a plurality of times. Per Lord Ellenborough, C. J., in Mestaer v. Hertz, 3 Maul. & S. 453.||

But, though persons cannot have two Christian names at one and the same time, yet they may, according to the institution of the church, receive one name at their baptism, and another at their confirmation; for though it allows no re-baptizing to make double names, yet it doth not force men to (b) abide by the names given them by their godfathers, when they come themselves to make profession of their religion.

Co. Lit. 3; 2 Roll. Abr. 135; Judge Gawdy's case, who was christened by the name of Thomas, and confirmed by the name of Francis. (b) But a person, by taking a new name of confirmation, does not lose his name of baptism. 6 Mod. 115, 116; Salk. 6, pl. 15; 2 Ld. Raym. 1015, 1016. {See Willes, 557.}

If the defendant have two Christian names, and they be transposed, as

(B) What Names and Additions are required by Law, &c.

if he be baptized Richard James, and be called in the declaration James Richard, it is a misnomer, and may be pleaded in abatement.

Jones v. Macquillin, 5 Term R. 195.||

The mistake of the surname does not vitiate, because there is no repugnancy that a person should have different surnames; and therefore if John Gape enters into an obligation by the name of John Gate, he may be impleaded by the name in the deed, and his real name brought in by an alias, and then the name in the deed he cannot deny, because he is estopped to say any thing contrary to his own deed.(a)

3 H. 6, 25; 2 Roll. Abr. 146. (a) See Bonner v. Wilkinson, 5 Barn. & A. 682.|| The declaration must be of the name in the obligation, with an alias of the real name; for the declaration must show the cause of complaint as it is; therefore it must in all things follow the obligation, and the intent of the alias is only to show he has been differently called from the name in the obligation; and therefore if a man oblige himself by the name of J S, esq., and afterwards he be made a knight, the plaintiff may declare against J S, knight, alias J S, esq.

Dyer, 273, Buls. 216; Gould v. Barnes, 3 Taunt. 504; Caumont v. Prevost, 1 Chit. 512.

{If the surname in an obligation vary in the spelling, but not much in the sound, from that in the subscription, the obligor may be sued by the name he has signed, without an alias dictus as to the name in the deed.

2 Cain. 362, Meredith v. Hinsdale.

Where a name appears to be a foreign one, a variance of a letter, which, according to the pronunciation of that language, does not vary the sound, is not a misnomer.

3 Cain. 219, Petrie v. Woodworth.}

It is said, that a person cannot take advantage of a mistaken surname in an indictment, either by plea in abatement, or otherwise, notwithstanding such surname have no affinity with his true one, and he was never known by it. And in this respect an indictment differs from an appeal, whereof it is certain, that a misnomer of a surname may be pleaded in abatement as well as any other misnomer whatsoever.

2 Hawk. P. C. c. 25, § 68.

Junior is no part of a person's name.

Commonwealth v. Perkins, 1 Pick. 388; Cobb v. Lucas, 15 Pick. 7; Kincaid v. Howe, 10 Mass. 203; 7 Johns. 549; 2 Caines, 164. See 17 Pick. 200; Commonwealth v. Beckley, 3 Metc. 330.

Whether the omission of the initial of a middle name is a misnomer, quære.

Keene v. Meade, 3 Pet. 2. See 4 Watts, 329; 5 Johns. 84; 14 Pet. 322; 2 Cowen, 463; Co. Litt. 3 a; 1 Ld. Raym. 562.

Where a person is in the habit of using initials for his Christian name, and is so indicted, and the fact whether he was so known is put in issue, and he is convicted, the court will not interfere on that ground.

City Council v. King, 4 M'Cord, 487.

If a defendant, sued by a wrong name, appear, he may be declared against by his right name, as sued by the name in the writ.

Hare v. Harrington, Wright, 290.

A misnomer of the person murdered, in an indictment, is of no conse