7 Blackf. 325 | Ind. | 1845
, — This was an action of debt brought by the state against Owen Adanson and Joseph James in 1843. The declaration contains two counts. The first count, after stating some superfluous matter respecting a petition and writ of habeas corpus, is as follows : That on the 6th of February, 1841, the defendants entered into a recognizance before a judge of the Circuit Court; that the recognizance was conditioned, that said Adanson should appear on the first day of the then next term of said Court to answer a charge of forgery ; that the recognizance was duly filed in the clerk’s office of said Court, and was also, on the first day of the term next after it was taken, recorded in said Court; that, in the body of the recognizance, the said Owen Adanson was described by the name of Owen Adamson; that, on the first day of said term of the Court, the defendant Adanson was called and made default; and that the other defendant, James, was called to bring in the body of said Adanson, and he also made default; whereby an action accrued, &c. The second count is similar to the first.
The plaintiff suggested on the record, that the process as to Adanson was returned u not found.”
The defendant, James, pleaded that there were no such judgment and proceedings as are described in the declaration. He also pleaded three pleas of former recovery, but it is only • necessary to notice the third one, which is as follows: That on the 10th of April, 1842, at said county, the plaintiff sued out of the Circuit Court a writ of scire facias against this defendant and said Owen Adanson (by the name of Owen Ad
Replication to said third plea of former recovery, that there is not any record of the supposed recovery in the plea mentioned. Rejoinder that there is such record.
The cause wad submitted to the Court. .
The plaintiff, under the issue on the plea to the action of nul tiel record, proved the recognizance sued on, which is signed by the defendants Owen Adanson and Joseph James, to have been entered into before the judge as alleged in the declaration; that the recognizance was returned to the Circuit Court, and filed on the same day on which it was taken ; that the principal, by the name of Owen Adamson, and the surety Joseph James, were called on the first day of the term of the Court next after the recognizance was taken; and that they both made default. The principal is named Owen Adamson in the entry on the order book by which the default was proved, and the entry of the default was objected to as evidence on account of a variance in the name, he being sued by the name of Owen Adanson; but the objection- was overruled. We think there was no ground for the objection. The names in question are so much Alike that the principle of idem sonans applies to them; It "has been held that Beniditto and Benedetto may be considered, the same name. Ahitbol v. Beniditto, 2 Taunt. 401. So, also, with respect to Beckwith and Beckworth. Stewart v. The State, 4 Blackf. 171. There is, at least, as much difference in the names in those cases as in the names of Adanson and Adamson.
The plaintiff, supposing it necessary to prove that the recognizance sued on had been copied into the record book of the Court, offered in evidence an entry made in May, 1841, in such book, of the recognizance in question. The evidence ' was objected to, because the principal’s signature to the copy of the recognizance is Owen Adamson instead of Owen Adanson. This objection was correctly overruled, the variance being immaterial. The question discussed by the counsel,
The defendant, to establish the plea of former recovery, gaTe in evidence the record of a previous suit by scire facias, instituted in 1842 against Owen Adamson and Joseph James, founded on a recognizance agreeing with that described in the declaration in the present action of debt, except as to the name of one of the persons sued, who is stated in the scire facias to be Owen Adamson. The process in the suit by scire facias was returned “not found” as to Owen Adamson. The other defendant pleaded to the scire facias, nul tiel record; and the plaintiff replied there was such record. This issue was found for the defendant, and he was accordingly discharged.
The Circuit Court, on the foregoing evidence, gave judgment in this action of debt for the state.
We think the judgment is erroneous, on the ground that the record of the suit by scire facias, as proved, was a bar to the present action. The two actions are, apparently, between the same parties and on the same recognizance. The plaintiff, to show a variance, relies on the circumstance, that the scire facias is on a recognizance alleged to have been entered into by Owen Adamson and Joseph James, and the action of debt on a recognizance averred to have been entered into by Owen Adanson and Joseph James. The variance here relied on is that between the names of Adamson and Adanson, which, as before noticed, is immaterial.
If the causes of action were not the same, the plaintiff should have replied that fact to the plea of former recovery, instead of replying nul tiel record.
— The judgment is reversed with costs. Cause remanded, &c.