Majority
p. 148Mann against Gerardus Q. Carley, sued by the name of Grautis Q. Carley, impleaded with Walton and De Groff; Chapin against Gerardus Q. Carley, who is sued by the name of Quartus Q. Carley, impleaded with De Groff, Walton and Meach. moved to set aside the cajnas and a11 subsequent proceedings, on the part of the plaintiff, in the first cause, for irregularity,
Headnote
Grantis & Gerardus are difSo are Quardusand Gerar"A defendant, wrong ramo! may plead the dement, a™ ter he has apgiven notice dally!* Spe"
And in a case where he moved before ap=o"et’ aide the capias and ¿ubsequent hro^arit|S.f0r Buttheyrein a case where the defendant had appeared, though special-
And they will not here-do it any case; having adopted a general rule, that, hereafter, the misnomer of the defendant shall in all cases be pleaded in abatement.
There are only three ways for the defendant to appear in a cause, viz., by putting in special bail, filing common bail, or causing his appearance to be entered. Giving notice of retainer ie not an appearance.
The capias ad respondendum in the first cause, return-a^e at t'de *ast October term, was issued against Carley, "by the name of Grautis Q,. Carley ; whereas his real name was Gerardus Q,. Carley. • The capias contained no ac etiam, and was served on Carley and Walton. Carley’s attorney gave notice of retainer, entitled, “ Gerardus Q,. Carley, who is sued by the name of Grautis Q,. Carley, impleaded, <fcc. ads. John M. Mann.” A declaration, endorsed de bene esse, was delivered to the agent of the defendant’s attorney on the 13th day of December last. The declaration was against the defendant by his right name, stating ^at he was sued by the name of Gráutis Q,. Carley. The notice of this motion was served on the 20th December • . last, with an order to stay proceedings, &c.
At an early dayin the Present term=
, A. C. Paige for Carley,
He said, it is no w well "established, that proceedings in a cause wiH pe set aside for a misnomer of the defendant, 7 where the application is made before the time for pleading in abatement has expired. (Smith v. Innes, 4 M. & S. 360. Wilks v. Lorck, 2 Taunt. 399. Greenslade v. Rotheroe, 2
p. 149New Rep. or 5 B. & P. 132. Doo v. Butcher, 3 T. R, 611. Corbett v. Bates, id. 630. Delanoy v. Cannon, 10 East, 328. Dring v. Dickenson, 11 East, 225. 1 Dunl. Pr. 236.) The case of Smith v. Innes, (4 M. & S. 360,) was distinguished, by the Court, from Binfield v. Maxwell, (15 East, 159,) upon the ground that the motion was not made in the last case, till after the time for pleading in abatement had expired. Smith v. Patten, (6 Taunt. 115,) and Oakley, q. t. v. Giles, (3 East, 167,) are distinguishable for the same reason. In Delanoy v. Cannon, (10 East, 328,) the same distinction was made. Murray v. Hubbart, (1 B. & P. 645,) is not against the motion, as there the defendant appeared, by putting in bail in his right namq, without stating that he was sued by the name mentioned in the writ. That a misnomer may be pleaded in abatement, is well settled. (Oakley, q. t. v. Giles, 3 East, 167. 1 Chit. Pl. 250. Bac. Abr. Misnomer, (F.) Eichorn v. Le’maitre, 2 Wils. 367. Shadgett v. Clipson, 8 East, 328. Cole v. Hindson, 6 T. R. 234. Holdipp v. Otway, cited by Lawrence, J. in Blackwell v. Fleming, 7 T. R. 443, note (a). Smith v. Patten, 6 Taunt. 115. Binfield v. Maxwell, 15 East, 159. Smith v. Innes, 4 M. & S. 360. Delanoy v. Cannon, 10 East, 328. Jones v. Macquilan, 5 T. R. 195. 1 Dunl. Pr. 436. 2 Chit. Pl. 458, 462, 4, 6.) And whenever a misnomer can be pleaded in abatement, a motion may now be made to set aside the proceedings for irregularity. (Smith v. Innes, 4 M. & S. 360-1.) There is clearly a misnomer in this case. Gerardus and Grautis are different names. Shakepcar and Shakespeare, (The King v. Shakspeare, 10 East, 83 ;) Agnes and Anne, (2 Roll. Abr. 135 ;) Richard James, and James Richard, (Jones v. Macquilan, 5 T. R. 195;) Ralph and Randall, Randulphus and Randalphus, (Bac. Abr. Misnomer, (A) have been holden different names. See also 1 Chit. Plead. 440. The law notices only one Christian name. A middle letter is no part of the name. (Franklin v. Tallmadge, 5 John. Rep. 84 .)
p. 150The notice of retainer, served on the plaintiff’s attorney by the attorney for Carley, did not cure the defect in the process.- The notice was drawn in such a manner as to reserve the right of taking advantage of the misnomer. (Tidd’s Pr, 582, note (i). 1 Dunl. Pr. 175. Id. 237-8.) The writ being Unbailable, is no reason why Carley should not be allowed to take advantage of the misnomer. He is not considered in Court It is the same as if he had not been sued at all j (Greenslade v. Rotheroe, 5 B. & P. 132, per Mansfield, C. J.) and the plaintiff has no right to have an appearance entered, or common bail filed in the right name, and then to declare in that name. (Doo v. Butcher, 3 T. R. 611. Delanoy v. Cannon, 10 East, 328. Dring v. Dickenson, 11 East, 225. Corbett v. Bates et al. 3 T. R. 660.) The case of Symmers v. Wason, (1 B. & P. 105,) was overruled in Delanoy v. Cannon, (10 East, 328 ;) and the positions laid down in 1 Chitty’s Pleadings, 250-1 and 440, as to the manner of evading the effect of a misnomer, Will be found not fully sustained by the decisions which he cites. In Smith v. Innes, (4 M. & S. 360,) the misnomer Was James instead of John; and Innes had signed the bail bond with the initials of his Christian name, thus, 1. Innes ; yet this was held no objection to the motion. A notice of retainer is not an appearance. An appearance is only by putting in special bail, filing common bail, or having an appearance entered. (4 Dunl. Pr. 300, 301, 6 Rule of April Term, 1796. 1 Dunl. Pr. 163, 4, 5. De Wandelaer v. Coomer and Doe, 6 John. Rep. 328 . Redmond v. Russell, 12 id. 154.) The only distinction of sound, arose from the difference between the Yankee and Dutch pronunciation. The former gives the name Grautis, the latter Gerardus, which would enable us to reply to a plea in abatement, that the defendant is known as well by the name we have called him, as the one which he claims. That would be a conclusive answer to a plea, and should be equally so to a motion. (Petrie v. Woodworth, 3 Caines’ Rep. 219 .) This is one of the corruptions
J. Platt, contra, said, that in truth, here was no misnomer.
p. 151which have arisen from the migration and settlement of our eastern brethren, among the descendants of Holland, whose fathers founded the state, and whose pride it would have been to have secured the original pronunciation,, to their remotest posterity. But the gentleman has mistaken the remedy. If we are not permitted to avail ourselves of this corruption of sound; if the ancient pronunciation is to be protected by our courts of justice} and our citizens punished for departing from it, this will only be done where the abuse has been accompanied with greater violence than was practiced in this instance. Here has been no arrest with a view to imprison, or hold to bail. The process was unbailable, and the defendant endorsed his appearance. The cases of the gentleman will not any of them be found to apply to such a case. If the defendant be held to bail, then, say the cases, he may, before the time for pleading in abatement has expired, move to be discharged on common bail; (1 Dunl. Pr. 236;) or a Judge at his chambers will discharge him on the same terms. This is the meaning and spirit of the cases cited. Here, nothing more than common bail was ever exacted; the mere entry of an appearance. In such a case, the Court should put this Gerardus or Grautis to his plea in abatement. (2 Chit. Pl. 464. Oakley v. Giles, 3 East, 168. Cur. adv. vult. The facts in the second cause were the same as in the first, except that the capias was bailble, and Carley had put in special bail, the bail piece beginning thus; -- ss. “ Gerardus Q. Carley, sued by the name of Quartus Q, Carley, impleaded, dec.” A special notice of bail was given. After the argument, but before the decision of the motion, in the first cause, also moved to set aside the capias and all subsequent proceedings in the second cause. He urged the same arguments as before, and cited the same authorities.
A. C. Paige, for Carley,
J. Edwards W. Hubbell, contra.
p. 152Mr. Edwards, read an affidavit of the plaintiffs’ attorney that the misnomer was by mistake: and that he had made out, and filed an original bill, and a preecipe for a latitat in both of which the parties were described by their right names. But the Court of Common Pleas in England have adopted a rule different from the King’s Bench, in relation to misnomer. In Symmers v. Wason, (1 B. & P. 105,) a case precisely similar to this in every feature, that Court refused either to set aside the proceedings, or to discharge the bail. If this Court have not already settled a practice for themselves, that of the Common Pleas will best promote justice, and be found nearer in conformity with the principles of our own practice. The defendant, through mistake, is arrested by a wrong name; he appears and puts in bail by his right name, stating that he had been arrested by a wrong name; there being no doubt that he was the person really intended •
The counsel then argued, that a misnomer should not be treated as an irregularity. They did not find that a similar •case had ever been before this Court. It is said in 1 Dunlap’s Practice, 236, that proceedings will be set aside, where the defendant is sued by a wrong name, if application be made before the time for pleading in abatement has expired. The book does not say that this will be so, whether bail has been put in or not; but by referring to the cases cited, they will be found to be those in which bail had not been entered by the defendant. Wo admit there are several cases of the kind, where the Court of King’s Bench have set aside proceedings, the plaintiff having declared against the defendant by his right name, as sued by a wrong name, first filing common bail for the defendant by his right name: but we do not find any case where the defendant had entered special bail by his right name, although stating that he was sued by another name, in which proceedings have been set aside. In Binjield v. Maxwell, (15 East, 158,) where the defendant applied after the time for pleading in abatemeht had expired, the motion was denied; and one reason assigned by the Court, was, that there was no doubt that the defendant was the person really intended to be sued. That reason applies to this case.
p. 153the plaintiff declares against him by his right name, stating that he had been arrested by the wrong one ; the defendant is regularly in Court; the declaration is against him. What is the substantial injury complained off? We can see none. By putting in bail, he has, at any rate, removed all difficulty. In Murray v. Hubbart, (1 B. & P. 645,) the defendant was arrested by the name of Francis, and appeared and put in bail by the name of Samuel; the plaintiff declared thus : 11 Samuel Hubbart, arrested by the name of Francis Hubbart, was attached to answer George Murray, &c.the defendant pleaded the misnomer in abatement; but the plaintiff treated the plea as a nullity, and signed judgment. The Court refused to set aside the judgment, and said, “ The case, therefore, comes to this, that so long as it is the practice of the Court to issue the mesne process first, and to allow an original to be sued out afterwards, if necessary to substantiate the proceedings, no advantage can be taken, after appearance, of a misnomer in the mesne process.” -
If, then, the proceedings cannot be sustained as regular, they may be amended. That this would be so in the Common Pleas, appears by the case last cited. Amendments are allowed, not only in civil, but even in criminal cases, where there is any thing to amend by. In this case, an original bill has been filed against the defendant, by his right name. The capias' presupposes this to have been done ; and after judgment, and a writ of error brought, the party may file an original bill, nunc fro tunc, as of course. (1 Dunl. Pr. 112, 113, and the cases there cited.) ' The plaintiff may now amend his capias and declaration, if necessary, by the original on file. In Mestaer, q. t. v. Hertz, (3 M. & S. 450,) it was decided that the appearance of the defendant, in the same manner as here, was of itself, sufficient for the plaintiff to amend his capias and declaration by. In the case at bar, there is no necessity of amending the declaration. It is against the defendant by his right name ; by the name in which the suit was commenced, and the name in which he has put in bail. Indeed, we may ask, what occasion then to amend the capias, which was only the means of
p. 154bringing him into Court? If, however, an amendment of either capias or declaration, or both, is deemed necessary, we have enough to amend by. The principle originally advanced "by Ld. Hardwicke, and which runs through all the subsequent eases, is, that •“ an amendment "shall or shall not be made, as shall best tend to the furtherance of justice.” If the original bill, in this Court, is to be .considered the same as the original writ, in England, as to the subsequent proceedings, then the case cited, of Murray v, Hubbart, shows that we have been regular, and that no amendment is necessary. (Tidd’s Pr. 582, note 1, 2 Amer, ed.) Simply putting in bail, .either in the right or the wrong name, would estop the defendant from pleading the misnomer -in abatement. To preserve this right, he must appear specially, as was done-in this instance. (Id. 1 Dunl. Pr. 175, 237,238, and the cases there cited.) That .this .appearance does not cure the mistake, is farther proved, by the fact, that no plea in -abatement was ever interposed, without such an appearance, or,-what is equivalent, the filing .common bail, or entering .an appearance in the same special form- (1 Chit. Plead. 412. 1 Dunl. Pr. 376. Venn v. Calvert, 4 T. R. 578. Allaire v, Ouland, 2 John. Cas. 53, 56.) The defendant- must always appear before he can plead, either in abatement min bar. A plea before appearance is a nullity. (Id. ibid.) What further confirms this position is, .that a plea in abatement -for -a -misnomer may be put in by attarnoy. (1 Chit. Plead. 412. 1 Chit Plead. 413. 2 id, 416. Tidd. Pr. 582-3.) If, then, the .appearance does no,t estop the -defendant, to plead in abatement, it does not prevent him from ¡having -the -proceedings set aside on motion 5 for -the latter proceeding-can be adopted whenever a plea in abatement would toe proper. IN Smith v. Innes, (4 M. & S, 360,) it is evident that the defendant must have appeared, or the notice of declaration would not have been served on him,
Paige, in reply,-said the defendant’s appearance had not cured the mistake in -the writ; for he has appeared in the manner required, in order to reserve the right of taking ad-
vantage of the misnomer.
p. 155And see what Blosset says arguendo, in Rex v. The Sheriff of Suffolk, (4 Taunt. 819.) The plaintiff has no right to declare as he has done here, except where the defendant appears, generally, by his right name. (Roo v. Butcher, 3 T. R. 611. Murray v. Hubbart, 5 B. & P, 645.) Whenever he appears specially, as Carley has done, it is notice to the plaintiff that he intends to take advantage of the misnomer. (4 Taunt. 819, Blosset, arguendo.) Both causes were continued under advisement, till the other non-enumerated business of the term was mostly-disposed of; when,
delivered the opinion of the Court. After stating both cases, and wherein they differed, he said the motions under consideration were novel; he believed without precedent in this Court; and not of very ancient date in the English Courts. There had, however, within a few years, been several cases of the kind, both in the King’s Bench and the Common Pleas, to which the Court had been referred, at the bar. He should not now advert to them particularly. The Court had examined them with a good deal of care; and, for himself, he confessed, that he had bestowed more labor, and had found more perplexity in coming to a result, satisfactory to his own mind upon these motions, than he had experienced in all the other non-enumerated business of the term ; extensive, important and complicated as it had been. The cases, in which motions to set aside proceedings for a misnomer of the defendant will be entertained, are different in the different Courts of King’s Bench and Common Pleas; and they have not always been exactiy uniform even m the same. Court. But, in general, they agree, that where thedefendant -moves to set aside the proceedings, before appearance, he is entitled to relief in that form; and we dispose of these motions according to that test. The usual course is, to plead the misnomer in abatement. Without saying whether this would be a more beneficial course to the defendant, it is, at any rate, the fairer one ; and we are not disposed to countenance the present form of proceeding, by doing more than we feel ourselves bound to do, by the au
p. 156
thorities. These are uniform in declaring, that where the defendant moves, before he has appeared .in any manner, the practice is to sot aside the capias, and the subsequent proceedings of the plaintiff, for irregularity. That the defendant is misnamed has not been denied. If the fact.had been contradicted, or, perhaps, if it had been shown that the defendant was generally known as well by the name of Grautis as Gerardus, of course we should not interfere.. In truth, these names are different. They cannot be considered the same, within any of .the authorities. We do not think the cases warrant the distinction, contended for by ■ the counsel for the plaintiff in the first cause, between pro-. cess bailable and process unbailable.
Then, has the defendant appeared at the suit of Mann, in any way 1 We think not; a mere notice of retainer is not an appearance. This can only be by putting in special bail, filing common hail, or by causing an appearance to be entered. No other mode of appearance is known in our practice. In the cause at the suit of Mann, therefore, we grant the motion.
■ The cause at the suit of Chapin stands on a different ground. The defendant was sued by the name of Quartus ; a clear misnomer ; but he appeared. True, his appearance was special. The capias issued with an ac etiam against Q/uartus ; the defendant appeared by a bail piece in this form : “ Gerardus Q. Carley sued by the name of Quartus Q. Carley, is delivered on bail, &c.” and a corresponding special notice of bail was given by the defendant’s attorney. This was a good appearance in the action. It was available to the plaintiff, and entitled him to declare. Had the defendant appeared without reciting in the bail piece and notice the misnomer, he would even have been estopped to plead it in abatement. But this special form is given in the books, and has the effect of saving to the defendant, not his motion to set aside the proceedings, but his plea in abatement; to which he may yet resort. In these cases of special appearance, the plaintiff declares by the' right name, of which he has notice from the defendant,- and thus drives him. to his plea in abatement. After the defendant has appeared, in any form, we will not entertain a motion. The motion is
p. 157
accordingly denied in the last case; but the defendant may plead the misnomer in abatement, if he choose.
It is not improbable that we may, on farther reflection, adopt some general rule of practice, denying these summary applications, in cases of misnomer which may hereafter arise; but whatever reluctance we may feel to granting the motion in cither of these cases, it would be improper to adopt any such rule, and apply it to them. The motion is granted in the first, but denied in the second cause.
Rules accordingly.
Note. The following general rule was afterwards adopted by the Court:
February Term, 1825.
Ordered, that, in future, the Court will not entertain a motion to set aside the process or proceedings in á cause, on the ground of a misnomer of the party arrested; but will leave him to his remedy, of a plea in abatement.