Dutton v. Simmons

• Decision Date: 11 April 1876
• Citation: 65 Me. 583
• Parties: JAMES A. DUTTON v. GEORGE A. SIMMONS.
• Court: Maine Supreme Court

65 Me. 583

JAMES A. DUTTON v. GEORGE A. SIMMONS.

Supreme Judicial Court of Maine.

April 11, 1876

1874.

ON REPORT.

REAL ACTION.

Both parties claimed through Henry F. Hawkins; the plaintiff directly by deed; the defendant by a deed from Bradstreet M Hawkins, levying judgment creditor of Henry F. The levy, if all proceedings were regular, gave the earlier title. The officer's return upon the back of the writ Bradstreet M. Hawkins v. Henry F. Hawkins showed an attachment of the real estate of the defendant seasonably made, the parties correctly described, and the return required by R. S., c. 81, § 56, to the registry; but the plaintiff, against the defendant's objection, put in a copy of the officer's retnrn left with the register of deeds, and the indorsement thereon, and the entry of the same attachment in the attachment book, wherein it appeared that the officer having the writ in that case, in his return to the registry, gave the name of the defendant as Henry " M." Hawkins, instead of his true name, as it appeared in the writ, Henry " F." Hawkins. This error raised the contention in the case which after the evidence was out was made law upon so much thereof as was legally admissible.

J. Williamson, for the plaintiff.

N. Abbott, for the defendant.

PETERS J.

Both parties claim title to the demanded premises through Henry F. Hawkins. The deed to the demandant was prior to the levy of the tenant, but subsequent to the attachment on which the levy was made. The demandant, however, claims that the attachment was defective, because in the return of the officer to the registry of deeds, the defendant in that suit was described as Henry " M." Hawkins, when his true name was Henry " F." Hawkins, by which latter name he was sued. The question is, therefore, whether the misdescription is such as to render the attachment void.

The " names of the parties" to the suit were required to be returned. Can the name Henry " M." Hawkins be taken to mean Henry " F." Hawkins? Formerly, but one christian name was known to the law. The omission or insertion of a middle name, or its initial, was regarded as immaterial. Such is, probably, the law of the supreme court of the United States, and of many, if not most, of the state courts in this country at the present day. Games v. Stiles, 14 Peters 322. People v. Collins, 7 Johns. 549. But there has been a growing dissatisfaction with the doctrine of the ancient cases upon this subject; and in this state (and Massachusetts) the old doctrine must be regarded both by the precedents and practice as overruled. In Bishop's Crim. Law, Misnomer, may be found cited many of the cases upon the question pro and con. The English courts have also long since departed from the old rule, under the influence of some of their statutes of amendment. In Com. v. Hall, 3 Pick. 262, " Charles" Hall and " Charles James" Hall, are regarded as different names. Com. v. Shearman, 11 Cush. 546, decided that " George" Allen and " George E." Allen are not the same name. " Nathan" Hoard and " Nathan S." Hoard are not the same name. Com. v. McAvoy, 16 Gray 235. There are many other Massachusetts cases either directly or indirectly supporting the same view. In this state the cases of State v. Homer, 40 Me. 438, and State v. Dresser, 54 Me. 569, are to the same effect. It is also with us well settled that a person's middle name may be represented by its initial letter instead of writing the name in full. That is almost a universal practice. There was a distinction in some of the English cases depending on the fact whether the middle initial was a vowel or not. If it was, it was regarded as a name of itself. But if a consonant it was not a name. This nice distinction was grounded upon the idea that a vowel can be sounded by itself, but that a consonant cannot be sounded without the aid of a vowel. But this attempted distinction did not receive much recognition in the courts of that country, and has received none in the American courts, that we are aware of. Arbouin v. Willoughby, 1 Marsh, (E. C. L.,) 477. Lindsey v. Wells, 3 Bing., N. C., 777. The Queen v. Dale, 17 Ad. & E., N. S., 63. Kinnersley v. Knott, 7 Mann. G. & S., 980. Regina v. Avery, 18 Ad. & E. N. S., 576. See Kelly v. Laws, 109 Mass. 395.

The tenant claims that the name is described in the return with substantial correctness, and that the error is one of inaccuracy only and not fatal to the validity of the attachment. He would have had, probably, less difficulty to contend with, had the error been the omission of the middle letter, (as if written Henry Hawkins,) or if only the initial of the Christian name had been written, but correctly given, (as H. F. Hawkins). In such case perhaps the omission could have been supplied by parol proof. A person may have different names by reputation. Proceedings have been sustained in important cases where a person is described in either one or the other of the above ways. State v. Taggart, 38 Me. 298. Hubbard v. Smith, 4 Gray 72. Collins v. Douglass, 1 Gray 167. Commonwealth v. Gleason, 110 Mass. 66. Regina v. Avery, supra. But those are cases where the description of the person is said to be inaccurate or incomplete merely. Lord Campbell, C. J., in one of the cases before cited, says: " It may be said, initials are a short way of stating the Christian name." But the description of Hawkins in the officer's return was not a diminished one, correct as far as it went, and inaccurate merely, but it was essentially and positively false. It may have been caused by a slip of the pen, but as there is no power of amendment in the case we see no remedy for it. It is not a misdescription so patent upon the face of the papers as to correct itself. Nye v. Drake, 9 Pick. 35. Litchfield v. Cudworth, 15 Pick. 23. Slasson v. Brown, 20 Pick. 436. Commonwealth v. Mehan, 11 Gray 321. Frost v. Paine, 12 Me. 111. We think that Henry " F." Hawkins and Henry " M." Hawkins are not the same name.

Deciding the foregoing point as we do, brings before us another question, and one of much practical importance. The officer's certificate to the registry of deeds, was admitted in evidence to contradict his return upon the writ. This was objected to. Was it admissible for that purpose? We think it was. It has been settled that it was the officer's duty to certify on the writ the fact that he had filed an attested copy with the register of deeds, and that without it the attachment would be void. Carleton v. Ryerson, 59 Me. 438. (See 1 Allen 61.) It is upon this ground that it is now contended that the evidence admitted should have been excluded. The argument is, that the officer's statement in his return upon the writ being necessary, it must be conclusive. There is no doubt that the estoppel must apply to the demandant in this case, if it does to the defendant in the suit where the attachment was made. If it applies at all, it must affect not only that defendant but his privies, and, as the demandant took his deed after the attachment, he would stand in the present suit in that attitude. Bott v. Burnell, 11 Mass. 163. Campbell v. Webster, 15 Gray 28. Angier v. Ash, 26 N. H., 99.

The precise point in issue may never have been decided in this state. It was so understood by Justice Kent in State v Leach, 60 Me. 58, p. 74. Still, we think several reported cases exhibit a strong leaning upon the point if not decisive of it. In Nash v. Whitney, 39 Me. 341, it was held, (among other reasons,) that an attachment was a nullity because the certificate filed in the registry did not contain the statements as required by law. The facts of the case are rather vaguely stated, and the evidence admitted was not (as here) objected to, although the point was made as to the conclusiveness of the officer's return on the writ. In Kendall v. Irving, 42 Me. 339, Tenney, C. J., expressed an opinion that the attested copy left with the register would be the correct source of evidence from which the court could conclude whether an effectual attachment was made. In Lincoln v. Strickland, 51 Me. 321, a certificate to the registry...