Majority
p. 84Franklin and others against Talmadge.
Headnote
Where the plaintiff; in ail - action of trespass quare clausum fregit, <)e-name of William. tie6 deed’under which he claimed title- to the ltol%nu¿cuñ Wy Sobinson, the held immaterla». The letter T. V/&S no part name ; for the but one° christhe ‘plaintiff”11 thmíght'propcr, vásVCastiweillle known without, as with the lette.r. J- ’l1. V‘.e middle ol his name.THIS was an action of trespass quare clausum fres'it, . , , . 1 Y / for cutting down and carrying away pme timber from , , the land oí the plaintiffs. 1 he cause was tried at the last Oneida circuit, before Mr. Justice Tates.
At the trial, the plaintiff’s counsel produced a perfect title to Abraham Franklin? Samuel Franklin, and William T. Robinson, in the locus in quo ; the defendant’s counsel obj ected to the deed, on account of the variance as to the name of William Robinson, named in the declaration. The plaintiffs’ counsel offered to prove that one of the plaintiffs in the cause is as well known by the name of William Robinson, as by the name of William T. Robinson ; and that he is sometimes called by the one name, and sometimes by the other; but the judge ruled against the plaint^s’ w^° thereupon submitted to a nonsuit, subject to opinion of the court, r A motion was made to set aside the nonsuit, and for 7 a new trial.
Sedgwick, for the plaintiffs.
Kirkland, contra.
A new trial must be awarded with costs to abide the event. The addition of the letter T. between the Christian and surname of one of the plaintiffs, did not affect the grant, which was to be taken benignly for the grantee. It was no part of his name, for the law knows only of one Christian name. (Co. Litt. 3. a. 1 Ld. Raym. 562. Vin. tit. Misnomer, c. 6. pl. 5. and 6.) And it was perfectly competent for the plaintiff to have shown, if necessary, that one of the plaintiffs was known, as well
p. 85
with, as without the insertion of the letter T. in the middle of his name; though even that was not requisite in the first instance, nor unless made necessary by testimony on the part of the defendant.
New trial granted.