Boyden v. Hastings

34 Mass. 200

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1835
• Status: Published

Opinion

Putnam J.

afterward drew up the opinion of the Court. It seems to us to be very clear, that there is no such record as the plaintiff hath set forth in his declaration. If we were to say otherwise, it would be determining that Samuel Boyden junior was Samuel Boyden, without any averment of the fact. Thus in 2 Esp. Dig. 744, if a man pleads outlawry of the plaintiff by the name of J. S. knight, and the record brought in, be of J. S. gent., this is a failure of record. There is a quaere, in Bro. Abr. tit. Failer of Record, pl. 11, from which the case is taken, whether it should not have been averred, that he was made knight afterwards. And, no doubt, where the person who sues is the same, he may aver the fact in his declaration. Thus, if the fact would support him, the plaintiff might have alleged that he, by the name of Samuel Boy-den, recovered the judgment, &c. 5 Dane’s Abr. 438. As the pleadings now stand, we cannot presume that Samuel Boy-den junior and Samuel Boyden, are the same person. It is true that junior is no part of the name. Kincaid v. Howe, 10 Mass. R. 205. But it is used to distinguish the person ; and it is used where the father and son are of the same name ; and when it is so used, the Court is bound to presume that such is the truth of the case.

Judgment will be entered for the defendant, unless the plaintiff shall move to amend. The plaintiff may have leave to amend upon payment of costs from the time of joining the issue to the present time.