Terry v. Sisson

125 Mass. 560, 1878 Mass. LEXIS 132

• Court: Massachusetts Supreme Judicial Court
• Decided: November 7, 1878
• Status: Published

Opinion

Gray, C. J.

It is well settled in this Commonwealth that the middle name or initial is an essential part of the name. Sarah Sisson and Sarah F. Sisson are therefore different names. Commonwealth v. Hall, 3 Pick. 262. Commonwealth v. Shearman, 11 Cush. 546. Commonwealth v. McAvoy, 16 Gray, 235. The misnomer could not indeed be taken advantage of by the principal defendant, who had been duly served and had suffered a default; and it might, as between her and the plaintiff, be amended, at the discretion of the court. Trull v. Howland, 10 Cush. 109. Crafts v. Sikes, 4 Gray, 194. Langmaid v. Puffer, 7 Gray, 378. But such an amendment cannot affect intervening rights of third persons. The only writ served upon the trustee was against Sarah Sisson. The trustee, having no funds belonging to any person of that name, and acting, so far as appears, in good faith and with no notice or knowledge that the person intended to be sued was Sarah F. Sisson, lawfully paid over to the latter the funds in its hands belonging to her, and cannot by the subsequent amendment of the writ be made liable to pay the same over again to the plaintiff.s

The cases, on which the counsel for the plaintiff relies, contain no adjudication inconsistent with this conclusion, although expressions in some of the opinions might, apart from the facts to which they applied, seem to countenance his position. In Langmaid v. Puffer, above cited, the question arose between the plaintiff and defendant. In Wight v. Hale, 2 Cush. 486, and in West v. Platt, 116 Mass. 308, the writ was sued out by oi against two partners, described and clearly identified by the true names of the partnership and of one partner, although there was a clerical error or omission in the name of the other partner. In Vermilyea v. Roberts, 103 Mass. 410, the trustee’s answers admitted that he still held the funds after the amendment of the writ, so that he was primá facie chargeable; and the mere fact that he had, before the amendment, received a copy of an assignment of the funds, without further proof of its existence or validity, did not show, as matter of law, that the court below erred in charging him. Richards v. Smith, 9 Gray, 315. Lane v. Felt, 7 Gray, 491. Judgment affirmed.