8 Conn. 289 | Conn. | 1830
In this case, one point raised in argument, may be disposed of very readily. Did the alteration in the deed,
But in my opinion, the alteration is immaterial; and the deed is good. This is the only point of any importance. It seems, that there were two men, father and son, inhabitants of Preston, by the name of Elijah Wheedon. The elder was called Elijah Wheedon; the younger, Elijah Wheedon junior. They bore the same baptismal name, and the same surname. To distinguish them, they were called Elijah Wheedon and Elijah Wheedon jun. They might, with the same propriety, have been distinguished, by the name of Elijah Wheedon sen., and Elijah Wheedon. By adding the description senior to the name of the father, it would be unnecessary to distinguish the son by the addition of junior. These additions are, in their nature, temporary. They are adopted for convenience. Any other description might, with equal propriety, be substituted. They are, in no sense, any part of the name.
There were two gentlemen, many years ago, in Norwich, by the name of Benjamin Huntington. Both of them were magistrates, and both entitled to the addition of Esquire. One was usually called Esq. Ben; and the other, Esq. Ben at-the-corner, because he lived at an angle of two streets. Two gentlemen resided many years in New-Haven, of the same Christian and surname ; one of them an eminent physician, the other a distinguished lawyer. Neither senior nor junior was ever affixed to either of their names. It is a matter of great notoriety, that such instances are of frequent occurrence in all our large cities. What is to be the condition of wills, deeds, bonds, and other securities made to a man named John Smith, when there are twenty of that name residing in the same city? Are such instruments to be inoperative? In all such cases, the
In Powell v. Biddle, 2 Dall. 70. the supreme court of Pennsylvania declared, that a devise to Samuel Powell, (son of Samuel Powell, carpenter) might be shown to intend William Powell, a son of the same Samuel Powell, who had another son named Samuel Powell. By parol testimony, it was proved, that the testator was much attached to William; called him, by mistake or a nick-name, Samuel; and that he did not know Samuel. I feel no necessity, however, to extend the doctrine so far in this case.
It is material, that Elijah Wheedon jun., as appears on the motion, negotiated with the grantor for the land; and t hat the deed was intended for and delivered to him. It results, then, that as the deed was never delivered to Elijah Wheedon, the father, he could take nothing by it; and hence it is wholly inoperative, unless Elijah Wheedon jun. can show himself entitled under it. The maxim, then, applies, that a [deed shall be so construed ut res magis valeat quam pereat.
The authorities cited in opposition to this doctrine, are found in 2 Root 437. and Hobart 330.
In De Kentland v. Somers, in Root, it was decided, that where to an action of debt on judgment, a plea was put in,
The opinion of the court in De Kentland v. Somers, is given very briefly. No reasons are assigned, nor authorities cited. It could not, therefore, controul this case, if it were identical; but there is a manifest difference.
It is somewhat difficult to understand the case of Wilson v. Stubbs, Hob. 330. The question arose upon a description in a writ of one Ralph Stubbs. It seems, that there were father and son of that name; and the court say, (and for this purpose the case was read) “the defendant being named Ralph Stubbs, without any addition, shall never be accounted the younger, but always the elder of the two of that name.” (How can this be reconciled with the cases in Dallas, Blackstone and Peere Williams, as cited above!) A more satisfactory report of this case is found in Cro. Jac. 624. by the name of Stubbs v. Cook. “In a replevin by Cook against Ralph Stubbs, for beasts taken, he made cognizance as bailiff to the Earl of Northumberland for an amerciament in a leet; whereupon they were at issue, which was found for the plaintiff, and damages and costs assessed, and judgment given accordingly. He surmised, that the suit was against Ralph Stubbs senior, and, execution being sued, the sheriff had endeavoured to levy the damages and costs upon the goods of Ralph Stubbs junior; wherefore he sued this writ, [called a writ of identitate nominis,] to be discharged; and the writ was allowed, although it was after verdict, judgment and execution awarded.” Now, why was this writ
Let a new trial be granted.
New trial to be granted.