Peck v. Wilson

Superior Court of New Hampshire

Peck v. Wilson

14 N.H. 587

DecidedJuly 15, 1844

StatusPublished

This text of 14 N.H. 587 (Peck v. Wilson) is published on Counsel Stack Legal Research, covering Superior Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peck v. Wilson, 14 N.H. 587 (N.H. Super. Ct. 1844).

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Opinion

Parker, G. J.

The case does not find that the plaintiff was known as well by the name of Abel Peck as that of Abel G. Pock, and we cannot assume that as a fact, however probable it may appear. Upon any evidence tending to show that such was the truth of the case, the jury, if an issue to them had been framed, might have so found, and that would have shown the notice and certificate to be sufficient. In an indictment for robbery, the property was laid in J. H. It appeared that the prosecutor’s name was J. U. H. -Held not material, if he was generally known by the name of J. H. 5 C. & P. 601, Rex vs. Berriman. See, also, 2 C. & P. 634, Rex vs. Sheen, and 15 Pick. R. 7, Cobb vs. Lucas.

But we are of opinion that there is sufficient in the case stated, to entitle the defendants to judgment. The plaintiff, Abel G. Peck, had recovered a judgment at October term, 1838, against the defendant, Wilson ; an execution was issued upon it, and on the 19th of December, 1838, Wilson was arrested, and gave a bond in the ordinary form. On the 31st of December, 1838, only twelve days after this arrest, Wilson applied to the proper authority to be discharged, but in describing the creditor the initial of his middle name appears to have been omitted, and the notice followed the application in this particular. This notice was served upon the attorney of the plaintiff, who recovered the judgment. There is no statement or suggestion that there was any other judgment, against Wilson, in favor of any other Abel Peck, even if there may be any other individual of that name in Boston.

[590]*590Under these circumstances, the attorney upon whom the notice was served must necessarily have understood what execution was intended. There was no possibility of mistake in this respect. The omission of the initial letter was then an immaterial matter.

The case is as well made out for the defendants, as if it had appeared that the plaintiff was known as Abel Peck, for that is, upon such a state of the facts, a sufficient description of him. The plaintiff had full opportunity to appear and object. If he had appeared, he could not have pleaded in abatement, on account of misnomer; and where there is no plea in abatement, and no room for misapprehension or mistake, there is no matter of abatement, nor any sound reason for holding the proceedings invalid. 7 N. H. Rep. 309, Souhegan Factory vs. McConihe; 6 N. H. Rep. 378-381, Osgood vs. Hutchins; 24 Pick. R. 118, Conkey vs. Kingman; 10 N. H. Rep. 370, 376, Pierce vs. Somersworth.

Judgment for the defendants„

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Parker, G. J.

The case does not find that the plaintiff was known as well by the name of Abel Peck as that of Abel G. Pock, and we cannot assume that as a fact, however probable it may appear. Upon any evidence tending to show that such was the truth of the case, the jury, if an issue to them had been framed, might have so found, and that would have shown the notice and certificate to be sufficient. In an indictment for robbery, the property was laid in J. H. It appeared that the prosecutor’s name was J. U. H. -Held not material, if he was generally known by the name of J. H. 5 C. & P. 601, Rex vs. Berriman. See, also, 2 C. & P. 634, Rex vs. Sheen, and 15 Pick. R. 7, Cobb vs. Lucas.

But we are of opinion that there is sufficient in the case stated, to entitle the defendants to judgment. The plaintiff, Abel G. Peck, had recovered a judgment at October term, 1838, against the defendant, Wilson ; an execution was issued upon it, and on the 19th of December, 1838, Wilson was arrested, and gave a bond in the ordinary form. On the 31st of December, 1838, only twelve days after this arrest, Wilson applied to the proper authority to be discharged, but in describing the creditor the initial of his middle name appears to have been omitted, and the notice followed the application in this particular. This notice was served upon the attorney of the plaintiff, who recovered the judgment. There is no statement or suggestion that there was any other judgment, against Wilson, in favor of any other Abel Peck, even if there may be any other individual of that name in Boston.

[590]*590Under these circumstances, the attorney upon whom the notice was served must necessarily have understood what execution was intended. There was no possibility of mistake in this respect. The omission of the initial letter was then an immaterial matter.

The case is as well made out for the defendants, as if it had appeared that the plaintiff was known as Abel Peck, for that is, upon such a state of the facts, a sufficient description of him. The plaintiff had full opportunity to appear and object. If he had appeared, he could not have pleaded in abatement, on account of misnomer; and where there is no plea in abatement, and no room for misapprehension or mistake, there is no matter of abatement, nor any sound reason for holding the proceedings invalid. 7 N. H. Rep. 309, Souhegan Factory vs. McConihe; 6 N. H. Rep. 378-381, Osgood vs. Hutchins; 24 Pick. R. 118, Conkey vs. Kingman; 10 N. H. Rep. 370, 376, Pierce vs. Somersworth.

Judgment for the defendants„

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Bluebook (online)

14 N.H. 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peck-v-wilson-nhsuperct-1844.

Opinion

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