hath been the wife of him the said John Styles. And this he is ready to verify. Wherefore, because he, the said John Styles, is named in the said bill (or by original, or in C. P. in the said writ of the said John Nokes, and declaration thereon founded), as the husband of the said Sarah Styles, he, the said John Styles, prays judgment of the bill (or writ) aforesaid, and that the same may be quashed. (Add fidavit, as post, 8.)

PLEA WHEN PLEADED OF A TERM SUBSEQUENT TO DECLARATION.

In the K. B. (or C. P)

Jane Mills,

, next

-Term, 8 Geo. 4. (Term subsequent to declaration.) And now, at this day, that is to say, on sued by the name of Jane Ord, after (first day in full term), until which day Jane Mills ats. (against whom the said John Stone hath exhibited his said bill, John Stone. by the name of Jane Ord,) saving to herself all and all manner of exception to the said bill of the said John Stone, had leave to imparl thereto, and then to answer the same, &c., before our said lord the king, at Westminster, come, as well as the said John Stone, by his attorney, as the said Jane Mills in her own proper person; and the said Jane Mills says, &c. (State subject matter of plea, as usual. If declaration be against deft. in the right name, there is no occasion to insert the above words, against whom, &c. between the brackets.)

THE LIKE TO A DECLARATION BY ORIGINAL.

In the K. B. (or C. P.)

Jane Mills,

Term, 8 Geo. 4. (Term subsequent to declaration.) And Jane Mills, sued by the name of Jane Ord (or if the sued by the name of Jane Ord, deft. be sued by the right name, say, and the said Jane Mills, in

ats.

John Stone.

tion aforesaid, prays leave to
The same day is given to the
said John Stone, by-
the said Jane Mills says, &c.

her, &c.), in her proper person comes, and, saving to herself all advantages and exceptions, as well to the writ as to the declaraimparl thereunto, here, until, &c.; and it is granted to her, &c. said John Stone, here, &c.; at which day comes here, as well the , his attorney, as the said Jane Mills, in her proper person; and (State subject matter of plea, as usual.)

Jane Mills (sued by the name of Jane Ord), of.

Between

John Stone,pltf.
and
Jane Ord, deft.

the defendant in this cause, maketh oath and saith, that the plea hereunto annexed is true in substance and matter of fact. Sworn, &c.

Jane Mills.

REPLICATION TO PLEA OF COVERTURE DENYING THE FACT.

In the K. B. (or C. P.)

John Stone ats. Jane Ord.

Term, 8 Geo. 4. (Term when pleaded.)

And the said John Stone saith that his said bill (or the said writ), by reason of any thing by the said Jane Ord, in her said plea above alleged, ought not to be quashed, because he says, that at the time of exhibiting the said bill (or at the time of issuing the said writ), against the said Jane Ord, she, the said Jane Ord, was not married to the said Henry Mills, in the said plea mentioned, in manner and form as the said Jane Ord hath above in her said plea in that behalf alleged; and this he, the said John Stone, prays may be inquired of by the country, &c.

Notes on Form of Plea, &c.

The preceding observations, as to forms of pleas, &c. in abatement in general, will be here applicable. We have seen the plea of deft.'s coverture must be pleaded in person, ante, 3. It must not also be pleaded by

the deft.'s maiden name: Barn. 334. It must be averred the husband is still living: 1 Chit. Pl. 389. These pleas, as the cause of abatement goes rather to the nonjoinder of the husband than to the disability of the feme, should conclude with a prayer of judgment to the bill or writ: Lil. En. I. 123; 1 Chit. Pl. 400.

If the plt. do not merely deny the coverture, but relies on some other answer, as the death of the husband, or the like, the same should be replied specially.

Evidence in Coverture.

Who is to begin.] According to the general principle, the deft. ought to begin by proving the truth of his plea, the affirmative of the issue being with him; but the practice appears to have varied with circumstances. And where the essence of the inquiry is the amount of the plt.'s damages, he is entitled to begin. Therefore, on a plea of coverture to assumpsit for goods sold, &c. Abbot, C. J. "intimated that, as the plt. had to prove the amount of his damages, his counsel was, if he elected to do so, entitled to begin; but, if he began, he must go into the whole of his case relating to the coverture:" but, the deft.'s counsel agreeing to admit that goods had been delivered to the amount claimed, was permitted to open the case for the deft.: Lacon v. Higgins, 3 Stark. 178. And it was so ruled on a plea of nonjoinder in assumpsit, by Abbot, C. Jin Robey v. Howard, 2 ib. 555-6. But, if the deft.'s testimony is such that plt. must necessarily be unacquainted with it, he may reserve his evidence to the plea in reply to the deft.'s case; so where deft. endeavoured to support his plea by evidence of a secret partnership with one Cohen, Abbot, C. J. said, "The plt. does not know who Cohen is, except from the plea; he cannot meet the case, till he is acquainted with it; it might have been otherwise, had the account been originally made out in the name of Levy and Cohen :" Stansfield v. Levy, 3 Stark. 8, 9.

Where the evidence is such as not to throw the necessity of any proof at all, as to the cause of action, on the plt., as in trespass, if deft. *justifies, he has a right to begin, as "the question of damages never [*9] arises until the issue has been tried." Per Bailey, J., Jackson v. Hesketh, 2 Stark. 518; Hodges v. Holder, 3 Camp. 367; Bedell v. Russell, R. & M. 293.

Proof for Defendant.] It will be sufficient to prove cohabitation under marriage by repute, which may be established by "general reputation, the acknowledgment of the parties, and reception of their friends as man and wife," &c.: per Ld. Kenyon, Leader v. Barry, 1 Esp. Rep. 354. But unless the parties live together, some proof of an actual marriage seems necessary: Wilson v. Mitchell, 3 Camp. 394; Horn v. Noel, I Camp. 61. And, when such proof is required, it is usually established by the production and proof of register of marriage, or an examined copy of it, with proof of identity of parties; for which, and the best evidence of marriage, whether in England or abroad, see post, "Crim. Con." It must be proved the husband was alive at time of contracting debt, or cause of action accruing and plea pleaded. Presumptive evidence of having VOL. I.

2

been heard of and alive within seven years will do: Hopewell v. De Pinna, 2 Camp. 113. Proof of letters written to his friends in this country, if he be abroad, or other similar evidence, will suffice for this purpose: ib.; Peake's Ev. 377.

Proof for Plaintiff.] If plt.'s answer to the plea is the transportation of the husband, this must be proved by a transcript of the conviction, furnished by the clerk of assize or of the peace for the county where the conviction took place, which is sufficient evidence by 6 Geo. 1, c. 23, s. 7, and 56 Geo. 3, c. 27, s. 8, and also by proving the prisoner's identity.

Damages.] The plt. should, on the trial of an issue as to coverture, as in all other cases of abatement, where damages are the principal object of the action, be prepared to prove the damages, and that the jury, if they find for him, assess them; otherwise, as an omission in this respect cannot be supplied by a writ of inquiry, a venire de novo must be awarded: 2 Wils. 367; 2 Saund. 211, a,

MISNOMER.

When it may be pleaded, 9.
Forms in, 11.

Notes on Forms, 12.

Evidence, 13.

Of Plaintiff's name.] A misnomer in or omission of the plaintiff's Christian name, if it appear in the declaration, may be pleaded in abatement, although he be known also by the name by which he sues: 1 B. & P. 44; 3 Camp. 29. And such plea is the only means of taking advantage of the mistake: 6 M. & S. 45; 2 B. & B. 34; 1 B. & P. 40, 645. A plt. may sue by his name of baptism, or by his name of confirmation, or both: 6 Mod. 115, 6; 2 Ld. Raym. 1015, 6. So, a misnomer of plts., a corporation aggregate, in its name of incorporation, may be pleaded in abatement; such as stating the Christian name of one of the members, or the like, when it was not incorporated by that name: 1 Leon. 307; 2 Inst. 666; 12 East, 4, 10. More strictness is required in stating the name of incorporation than in the case of grants and obligations: 6 Co. 65, 10 Co. 87. And more strictness is required in stating the name of a corporation

newly created than one created before the time of legal memory: [*10] *Cro. El. 351; Hob. 211; Noy, 54. A peer must sue by his Chris

tian name, as well as that of dignity. Transposing two Christian names, as James Richard for Richard James, is a misnomer: 5 T. R. 195. Where a surname is idem sonans, it is no cause for abatement; but the names of Shakpear and Shakspeare are not so: for, as observed by Ld. Ellenborough, "the final e might not make a material difference, but the omission of the s in the middle makes it a different sounding name from the true one." 10 East, 83. There are some names, though differing in

sound and orthography, are deemed the same; and a man may plead or be impleaded by one or the other indifferently: as, Jane for Joan, Jean for John, Garret, Gerat, and Gerald, Saunders and Alexander, have been holden the same: 2 Rol. Ab. 135; 1 Leon. 147. So, Piers and Peter: Cro. Jac. 225. But Ralph and Randall, Sibel and Isabella, are not the same: see 2 Rol. Ab. 135; Bac. A. Misnomer, A.

A misnomer in or omission of plaintiff's surname, if it appear in the declaration, is in the same manner pleadable in abatement, although the misnomer of the christian name be also pleaded: Hardw. 286; Bac. Ab. Misnomer, F. But he need not sue in the surname in which he was baptized or confirmed his acquired name will suffice: Th. Di. l. 3, c. 2, s. 1; 3 M. & S. 450. And so much strictness is not required in the insertion of the plt.'s surname, if he be pointed out by other explanatory means, as stating him to be A. the son of B. C. or the like: Com. D. Abt. E. 19.

Defendant's Name.] A misnomer in or omission of defendant's Christian name, if it appear on the declaration, is also pleadable in abatement, Lutw. 10; 6 Taunt. 115; and is the only means of taking advantage of the objection in non-bailable cases: 7 D. & R. But deft. may, under circumstances, in bailable actions, get discharged on common bail: 1 Chit. R. 282. Lake v. Silk, 11 Moo. Rep. 57. In some cases, indeed, in the statement of a contract, a misnomer would be fatal at the trial: 4 T. R. 611. The deft. may be sued by the name in which he was baptized, Lutw. 10, or confirmed, Co. Lit. 3, or both, 6 Mod. 115, 6, 2 Ld. Raym. 1015, 6, or by the name he has usually been known by and called himself: Com. D. Ab. F. 18; 6 Mod. 116; 4 Mod. 347. If a deft. execute a deed or specialty, though by a wrong name, he should be sued by that name: 3 Taunt. 504; Dyer, 279. If the deft. put in bail, or the like, by his wrong name, without noticing the error, he is estopped afterwards disputing it, and that fact may be replied as matter of estoppel: Bac. A. Pleas, 7. 11; Tidd, 253; 1 Ld. Raym. 249; see form, 3 Chit. Pl. 1143. The points above noticed as to the name of a corporation, and the names being transposed, or idem sonans, or of the same nature throughout idem sonans, will be here applicable: suprà. It is no cause of demurrer that a deft. is sued by the name of J. otherwise F. S.: 3 East, 111.

A misnomer in or omission of defendant's surname is in the same manner pleadable in abatement: 4 Mod. 347; Ast. En. 1. The points noticed as to a mistake in plt.'s surname are here applicable. Where there are father and son, or the like, of the same name, if the process be improperly served, and the wrong person be declared against, he may plead it in abatement: see Com. D. Abt. F. 21. If judgment be obtained against him by a wrong name, and plt. afterwards sue him for the same cause of action in his right name, he may plead the judgment recovered, with averment of his being the same person: 2 Str. 1218.

Name of Dignity, Office, &c.] If the plt. or deft, have a name of dignity of this realm, as duke, earl, baronet, knight, bishop, &c. and it be omitted or mistaken, the same may be taken advantage of by plea in abatement: Com. D. Abt. F. 19, E. 18, 19, 20; 1 B. & C. 871; Hob. 129; Palm. 345; 4 D. & R. 592. So, if either have a name of dignity given

him in the declaration when he has it not, the same is pleadable in [*11] abatement: Reg. Pl. 287; 1 Vent. 154; 2 Salk. 415; Com. D. Abt. F. 19. A deft. sued as an attorney or the like cannot plead he is not one: 5 M. & S. 314; 6 B. & C. 77. If a plt. sue, or a deft. be sued, for any thing relating peculiarly to his office, he should be named by his name of office, in addition to his other names, or the omission or mistake is pleadable in abatement: Com. D. Abt. E. 22. F. 20.

Where several Defendants, &c.] A misnomer as to one of several defts, cannot be taken advantage of, but by himself: 30 Ed. 3. 22; Lutw. 33. But a misnomer of the wife may be pleaded by both husband and wife, though he must also answer for himself: Re. Pl. 289; 6 C. 64, b.; Th. Di. l. 11, c. 5, s. 17.

Amendment, &c.] In cases of misnomer, plt. may amend, on payment of costs: 3 M. & S. 450: Tidd, 753. But this is not of course where there has been a tender: 1 Chit. Pl. 402, n. i. It is not necessary to enter a cassetur billa, as in the case of a nonjoinder: ante, 4.

Forms of Pleas, &c. in Misnomer.

PLEA OF MISNOMER OF DEFT'S CHRISTIAN NAME.

In the K. B. (or C. P. or Exchq.)

John Smith,

sued by the name of James Smith,

ats.

Term, 8 Geo. 4.

(Term of declaration, if plea pleaded of a subsequent term: see forms, anle.)

And John Smith against whom the said Henry Bell hath exhibited his said bill by the name of James Smith

in C. unst

Henry Bell. whom the said Henry Bell hath issued his said writ, and declared thereon, by the name of James Smith), in his own person comes and says, that he is named and called by the name of John Smith, and by that name and surname hath always, since the time of his nativity, hitherto been named and called; without this, that he, the said John Smith, now is, or ever was, named or called by the name of James, as by the said bill, (or if in C. P. or by original, say, as by the said writ, and declaration thereon founded) is supposed; and this, he, the said John Smith, is ready to verify. Wherefore he prays judgment of the said bill (or if in C. P. or by original, say, of the said writ and declaration thereon founded), and that the same may be quashed, &c. (Add affidavit, ante, 8.)

THE LIKE OF DEFT.'S SURNAME.

In the K. B. (or C. P. or Exchq.)

John Smith,

sued by the name of John Todd,

ats.

Term, 8 Geo. 4.
(Vide suprà.)

And John Smith, against whom the said Henry Bell hath exhibited his bill by the name of John Todd (or if in C. P. or by original, as in preceding form), in his own proper perHenry Bell. son comes and says, that he is named and called by the name of John Smith, and by the said surname of Smith hath always hitherto been called and known; without this, that he, the said John Smith, now is, or ever was, named or called or known by the surname of Todd, as by the said bill (or if in C. P. or by original, as in preceding form,) is supposed. And this he, the said John Smith, is ready to verify. Wherefore he prays judgment of the said bill (or if in C. P. or by original, as in preceding form), and that the same be quashed, &c. (Add affidavit, ante, 8.)