Young v. Jewell

• Decision Date: 02 March 1909
• Parties: YOUNG v. JEWELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 385

87 N.E. 604

YOUNG v. JEWELL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1909

COUNSEL

W. H. Thorpe, for appellant.

H. F Butler and J. S. Sullivan, for appellees.

OPINION

LORING J.

On April 28, 1906, one William Clarke Jewell was arrested in a civil action under a writ returnable on May 12, 1906. On the day of his arrest he was taken before a master in chancery and there recognized, with the defendant in the action now before us as surety, for his appearance in court within 14 days. On May 2d notice was given to 'Edward E. Morrison, plaintiff,' that 'Clarke Jewell, defendant,' desired to take the oaths of not intending to leave the state and for the relief of poor debtors on May 4, 1906. This was duly served. William Clarke Jewell attended before the magistrate, but neither Morrison nor his attorney appeared. This action was then brought for breach of the recognizance, on the ground that the notice given was duly given under Rev. Laws, c. 168, §§ 30, 33. The case was submitted to the superior court on agreed facts. It is stated in the agreed facts that 'the said William Clarke Jewell is frequently called 'Clarke Jewell' and he is accustomed to give an answer to that name.' An order of judgment for the defendants was made in the superior court, from which the appeal now before us was taken.

We are of opinion that the notice given was a good notice within Rev. Laws c. 168, §§ 30, 33. Where a person is in fact known by two names, either one can be used. This principle has been applied in about every connection. Commonwealth v. Gale, 11 Gray, 320; Gifford v. Crockett, 121 Mass. 431; Commonwealth v. Trainor, 123 Mass. 414; Commonwealth v. Coburn, 132 Mass. 553; Commonwealth v. Gormley, 133 Mass. 580; Gillespie v. Rogers, 146 Mass. 610, 16 N.E. 711; Commonwealth v. Seeley, 167 Mass. 163, 45 N.E. 91; Lancy v. Snow, 180 Mass. 411, 62 N.E. 735; Kendrick v. Kendrick, 188 Mass. 550, 75 N.E. 151. It is said in many of the earlier cases that the person in question must be known by one name as well as by the other. That means that he must be known by both names, not that he must be equally well known by both names. Kendrick v. Kendrick, 188 Mass. 550, 75 N.E. 151.

The occasion of Jewell's giving the notice as 'clarke Jewell,' in place of 'William Clarke Jewell,' as he was named in the writ on which he was arrested, was this The notice was given before the return day of the writ; that is to say, when the writ was presumably in the hands of the officer. At any rate, Jewell's attorney applied to the magistrate who took his recognizance for the name of the plaintiff. It is stated in the agreed facts that: 'The memoranda made by the master in his...