Mann v. Carley

Woodworth J. 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 [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 [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.