Conaway v. Hays

7 Blackf. 159, 1844 Ind. LEXIS 76

• Court: Indiana Supreme Court
• Decided: June 6, 1844
• Status: Published

Opinion

Blackford, J.'

— Hays brought an action of debt against Daniel Conavay, junior, and Daniel Conway, senior. The defendants pleaded separately in abatement as follows:

Daniel Conaway, junior, against whom the plaintiff hath declared by the name of Daniel Conavay, junior, comes and says he is named and called by the name of Daniel Conaway, junior, &c.

J. Ryman and P. L. Spooner, for the plaintiffs. D. Macy, for the defendant.

Daniel Conaway, senior, against whom the plaintiff hath declared by the name of Daniel Conway, senior, comes and says that he is named and called by the name of Daniel Conaway, senior, &c.

Replication, that the said Daniel Conaway, junior, who is sued by the name of Daniel Conway, junior, is as well known by the name of Daniel Conway, junior, as by the name of Daniel Conaway, junior, &c.

Verdict and judgment for the plaintiff. _

The first plea is frivolous. The merely using a v instead of a w in spelling Conaway's name,.is too slight a-mistake to deserve notice. That plea may be considered a nullity.

The second plea might have been replied to by alleging that the'defendant, Daniel Conaway, senior, was called and known as well by the name of Daniel Conway, senior, as by the name of Daniel Conaway, senior, &c. The issue on the second plea would then have been, not how -the defendant spelled his name, but how he was called and known.' If it appear, in such cases, that the names have the same sound, there is no misnomer, however differently they may be spelled. Tibbets v. Kiah, 2 New Hamp. Rep. 557.

The replication in this case is a nullity, it not being applicable to either of the pleas, and there was therefore no issue for the jury to try.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.