shown-as, that the judgment was recovered against the defendant by the name of Richard Roe, or whatever he was called.1 If one is well known by two or more names, either name is the true one. At common law and in equity "parties can only sue in their true Where the contract or deed is executed to them in a wrong name, nevertheless plaintiffs must sue in their proper names, and may aver in their declaration that defendants made the deed or contract by the name mentioned." 14 This is believed to be the rule under the Code, where the truth is required at every step, although in common-law pleadings different ones have been given.15

names.

A mistake in a name may or may not be fatal. When A., B. and C. are sued upon a promissory note described as executed by them to C., a wrong name being given, and A. only was served with process and appeared, the plaintiff was non-suited because of the vari ance; it is not the note described. But "a difference is taken when all the defendants are actually served with process; they then appear and are in that way connected with the suit, though one comes in by a wrong name. In such case, if any one be misnamed, he and his co-defendants shall be bound by the name given unless he plead the misnomer in abatement." 18 "A misnomer of the plaintiff is no

13 2 Chit. Pl. 484.

14 Board of Ed. v. Greenebaum, 39 Ill. 609; Becker v. German Mut. Fire Ins. Co., 68 Ill. 412.

15 A defendant is, at common law, sometimes sued with an alias dictus. 1 Chit. Pl. 256. If sued upon a bond he has been held to be estopped from denying the abode or place as named in the deed. Bonner v. Wilkinson, 5 Barn. & Ald. 682. And one must be sued upon a deed by the name by which it has been executed. Crawford v. Satchwell, 2 Strange, 1218; Gould v. Barnes, 3 Taunt. 504. If one is sued upon a bond executed by another name, it should be made to appear that he was then known by, or as well by, that name. Williams v. Bryant, 5 Mees. & W. 447. The grantee of a deed made to a woman by her maiden name, the grantor not knowing of her marriage, is permitted to give this reason for the use of such name. Scanlan v. Wright, 13 Pick. 523. Anciently, the important name was the Christian, the baptismal, or, as it was then called, the proper name, the surname or family name being in the nature of an addition. But now the courts make no difference between the two; the question is by what name is, or was, the party known.

16 Cowan, J., in Waterbury v. Mather, 16 Wend. 611, where the question is discussed at length.

ground of non-suit if he identify himself as the real creditor or claimant and show that he is the party actually enforcing the proceedings and the defendant be not deceived." "

17

A corporation should sue and be sued by its true name but if the name be similar, if the true party is in court and the objection for misnomer is not raised before pleading to the merits, the error will be disregarded.18 So if the popular name is used.1o

§ 146a. As to Initials.

The initial of the Christian name is not the name; at common law a declaration thus describing a party is bad on special demurrer,20 and a defendant will be discharged on common appearance who has been arrested without setting out his Christian name in full.21 But it should be made to appear that the letter used is but an initial and not the name itself, for such letter whether vowel or consonant, may be the true Christian name.22

The Code does not dispense with the rule which requires the pleader to give the true name, and, whether an apparently initial letter will be treated as itself a name must depend upon the manner in which the question is raised. In the absence of anything in the record, or in the pleading or motion, to the contrary, the court will be warranted in so treating it. The party who objects to the pleading must do so for misnomer and give the true name; it then becomes a question of fact and no court will hold it good when it

17 1 Saund. Pl. & Ev. (5th Am. Ed.) 916, 917.

18 School Dist. v. Griner, 8 Kan. 224; Pape v. Capitol Bank, 20 Kan. 440; State v. Bell Tel. Co., 36 Ohio St. 296.

19 Gifford v. Rockett, 121 Mass. 431. 20 Turner v. Fitt, 3 Man., G. & S. 701.

21 Reynolds v. Hankin, 4 Barn. & Ald. 536. By the act of 3 & 4 Wm. IV. e. 71, it is provided that in actions upon written instruments if any of the parties are designated by an initial letter or construction of the Christian name, they may be described accordingly either in the affidavits, process or declaration.

22 Tweedy v. Jarvis, 27 Conn. 42. A plea in abatement for defect of parties, in giving the plaintiff a better writ, had named I. W. Hitchcock as a party to the contract sued on. The court held that I, for anything that appeared, might be the true Christian name.

is properly made to appear that the letter is but an initial.23 But the obligation to give the full name does not call for a middle name. "The middle letter is no part of the name." The law knows but one Christian name and the initial letter of another may be rejected as surplusage.25 It is otherwise held in Massachusetts, and apparently in Ohio.27

99 24

146b. The Idem Sonans and Variance.

26

A name is sometimes misspelled and even another given sounding like the true one, but not the same. The books abound in instances where the names of parties are incorrectly given, but they so sound as to be easily mistaken for the true ones. Men are known by their names as spoken, not written, and a failure in strict accuracy may often be looked for.28 When a mistake is made in the name of a defendant it may, upon default, become a serious question whether the record should bind him.29

John Smith is not bound to appear in an action against Richard Jones though served with process, but if he is served as John Smythe he will not be excused for so slight an error. Thus Mars is idem sonans with Marres,30 Petris with Petrie, McDonnel with

31

23 Bad, but not ground of demurrer. Gardner v. McClure, 6 Minn. 250 (Gil. 167). In Ohio parties to a written instrument by an initial letter or contraction may be so sued. Rev. St. 1880, § 5010; [Zwickey v. Haney, 63 Wis. 464, 23 N. W. 577; Walgamood v. Randolph, 22 Neb. 493, 35 N. W. 217.]

24 Phillips v. Evans, 64 Mo. 17.

25 Choen v. State, 52 Ind. 347, citing the authorities.

26 Com. v. Hall, 3 Pick. 262; Com. v. Shearman, 11 Cush. 546.

27 Mead v. State, 26 Ohio St. 505.

28 The reader will note that in ordinary transactions, as in unwritten contracts, the proper spelling of a party's name does not appear. So in ancient pleading, the plaintiff in order to obtain the original writ gave his name orally to the chancery clerk, and when the parties came into the common-law court, the proper clerk drew the pleadings from their oral statements. It must necessarily suffice if the names are entered as pronounced or as might naturally be understood.

29 The name of a co-obligor, who does not appear, must be correctly given or there is a variance, but if he appear he must plead in abatement or he will be bound by the name given. Waterbury v. Mather, 16 Wend. 611.

30 Com. v. Stone, 103 Mass. 421.

81 Petrie v. Woodworth, 3 Caines, 219.

32

34

McDonald, Erwin with Irvin,33 Brennan with Brenham, etc., etc. If the defendant appears he may insist that his name be given truly which the plaintiff may do by amendment, but if he does not make the objection it is, at the most, but a misnomer; the error is one of form and is cured by pleading to the merits. If, however, a defendant is charged upon a written instrument whose execution is denied, a question of variance may arise which will defeat the plaintiff, or will require him to amend his pleading.

The error is not so easily corrected when the parties are correctly before the court, but the evidence involves collaterally a name which is not the same as pleaded, or as otherwise supposed. The apparent variance cannot perhaps be corrected by amendment and the only question will be whether it sounds sufficiently like the one given or supposed that it may be easily mistaken for the other. The rule has been stated, perhaps rather too strictly, as follows: "It matters not how two names are spelled, what their orthography is; they are idem sonans within the meaning of the books if the attentive ear finds difficulty in distinguishing them when pronounced, or common and long continued usage has by corruption or alteration made them identical in pronunciation." 35 A variance may be claimed arising from an abbreviation of the Christian name, but if it be so common as to be generally understood the court will take notice that it stands for the full name.36

$147. Where the Name is unknown.

A plaintiff who is ignorant of his defendant's name is expressly authorized, in some of the states, to designate him by a fictitious name and supply the true one when discovered.37 "The deviation

32 McDonald v. People, etc., 47 Ill. 533.

33 Williams v. Hitzie, 83 Ind. 303.

34 Miller v. Brenham, 68 N. Y. 83.

35 Sherwood, J., in Robson v. Thomas, 55 Mo. 581. Matthews and Mather held not to be idem sonans.

36 Post, 191.

37 [Code Civ. Proc. N. Y. § 451; Rev. St. Ohio, § 5118; Rev. St. Ind. § 397; Code Iowa, § 3762; Gen. St. Kan. par. 4226; Code Civ. Proc. Cal. § 474; Code Civ. Proc. Colo. § 76; Gen. St. Minn. c. 66, § 126; Consol. St. Neb. § 4685; Rev. St. Wis. § 2612; Code Civ. Proc. § 118; Gen. St. Nev. § 3091; Code N. C. § 275;

39

from the common-law rule must be strictly pursued. There must be a distinct allegation to the effect that the name so sued is by reason of ignorance." 38 One thus sued is a proper party from the beginning, but no judgment can be taken against him unless the complaint is amended by inserting the true name when ascertained. In Iowa, instead of giving a fictitious name, the plaintiff is required to describe the defendant as accurately as practicable and to give the reason for so doing.40 In states with no statutory mode for bringing such unknown persons into court, at most the pleading can only be objected to for misnomer. At common law this error is met by plea in abatement. Under the codes the practice is not settled," but whether met by plea or by motion the true name must be given and the plaintiff will be permitted to amend.

Code Civ. Proc. S. C. 8 196; Comp. Laws N. D. § 4940; Comp. Laws 8. D. § 4940; Rev. St. Idaho, § 4230.

[When the true name is unknown, the following will be a sufficient allegation:

[The plaintiff complains of the defendant, and alleges:

That he is unable

to ascertain the true name of the defendant; that he brings this action against him in the above name; and that for cause of action against said defendant he alleges.

[The true name must be ascertained if it can be. How. Pr. 499; Rosencrantz v. Rogers, 40 Cal. 489.]

Gardner v. Kraft, 52

38 Gardner v. Kraft, 52 How. Pr. 499. And see Rosencrantz v. Rogers, 40 Cal. 489.

39 Farris v. Merritt, 63 Cal. 118, and cases cited.

40 Codes of 1873 and 1886, § 2557.

41 See post, § 427.

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