As we do not very frequently trespass on the patience of our readers by making large extracts from law books; and as we do not often meet with a work possessing so many recommendations to public notice as the present; we shall hope to be excused for the length of the preceding quotation, and to be farther allowed to introduce the case of Wray against Thorn C. P. M. 18 Geo. 2. which immediately follows in the volume the case of Norman against Beamont, and has a close connection with it in point of subject. In this latter case, the Court refused to set aside a verdict and to grant a new trial, because one of the jurors was named Henry in the venire, the habeas corpora, and the postea, when his real Christian name was Harry.

WRAY against THORN and HANCOCK.

This was an action of trespass quare clausum fregit, &c.

The defendant justified under a right of way; and the plaiutiff replied extra viam, on which the issue was joined, and a view had. aud a verdict for the plaintiff, damages is.; and it was not pretended that it was a verdict against evidence. But Henry Luppincott of Alverdiscot, Esq. was returned on the venire by the name of Henry, and he is so named on the habeas corpora, the panel, and the postea, (there being a tales); and he was one of the viewers. But an affi davit was produed of John Thorn and Lewis Wise, in which Thorn swore that his right christian name was Harry; and Wise that he had taken a copy of the register, by which it appears that he was baptized by the name of Harry.

A motion had been made by Hussey Serjt. to set aside the ver dict; and he cited Cro. Eliz. 222. Fermor v. Dorrington; Cro. Jac. 116. Blunt and Farley v. Snedston; Cro. Car. 202. Downs v. Winterflood; and 5 Co. 42. The Countess of Rutland's case. We were inclinable to make it good if possible, but made a rule nisi that the matter might be thoroughly spoken to and considered. And now Belfield Serjt. shewed cause against the rule.

I gave my opinion in the following manner;

This question can come only before a court for judgment in one of these four ways;

By motion in arrest of judgment;

By motion for an amendment;

By motion for a new trial in this court; or

By writ of error in a superior court.

In order that I may be understood, I will in the first place state the present case. In the next place I will mention all the cases that I can find that seem to bear any resemblance to this. And in the last place I will give you my opinion on the present question.

1

1 then stated the case as before, and then proceeded to mention the cases in the books. The first case that I cited was Cro. Eliz. 57Displyn v. Spratt, P. 29 Eliz. B. R. which was thus; Thomas Baker of D., was returned on the venire, in the distringas he was called Thomas Carter of D., and by that name sworn on the jury.

On Wednesday October 24th in the same term.'

A motion

A motion was made in arrest of judgment, and a case cited where George Thompson was returned on the venire and Gregory Tompson was returned on the panel and sworn, and it was held to be a void verdict; for the Court said that there was a great deal of difference between a mistake in a christian name and a mistake in a surname ; for a man may have two surnames but he can have but one christian name; but no judgment appears.

In Cro. Eliz. 222 Fermor v. Dorrington, P. 33 Eliz. B. R. in an action for words, after verdict judgment was stayed, because Taverner was in the return to the venire, and Turnor in the distringas; and he attended and was sworn by the name of Turnor. A case was cited in the same cast of Dousby . Willott, where a juror was returned by the name of Gregory in the venire and in the distringas by the name of George, and he was sworn by that name, and judgment was arrested. Another case was cited out of the Exchequer, where one Mizael was returned on the venire, and in the distringas it was Michael; both these were surnames; one Michael was sworn on the jury, and judgment was stayed for this reason. In the principal case the Court at first doubted, because the variance was in the surname, for the reasons before given; but afterwards resolved that the judg ment should be stayed.

In Cro. Eliz. 256. Hassett v. Payne, M. 33 & 34 Eliz. B. R. in an attaint it appeared that one George was named in the return to the venire, and in the distringas he was named Gregory, and so sworn ; and held per totam Curiam that no attaint would lie, because no ver dict, the trial being but by cleven. In Cro. Eliz. 258. Cotton's case, the same term, ia an action for words it was J. S of Abbotsan, in the return to the venire, and in the distringas J. S. of Abbasan, and ordered to be amended after a verdict. And in the same term between Mortimer and Oger it was De Hust in the return to the venire and De Hurst in the distringas; and on a motion in arrest of judgment held to be well caough, and the plaintiff had his judgment. In 5 Co. 42. The Countess of Rutland's case, M. 34 & 35 Eliz. B. R. a motion was made in arrest of judgment because Kobert Moore was returned on the verire, and he was so named in the distringas but in the panel before the justices of Nisi Prius he was named Robert Mawre, and so he was named on the postea; and it was insisted that a stranger who was not returned was sworn on the jury but, by the whole Court, if it can appear by examination that his right name was Robert Moore, so that he was well returned on the venire, and that the same man was returned and sworn, the postea may be amended. It was held otherwise in several cases there cited out of the Year-Books; but it was said in that case that now the law was that judgment should not be stayed, for that these discontinuances were aided by the stat. 32 Hen. 8. c. 30. and 18 Eliz. c. 14. But it was there said that even now if a juror be misnamed in the panel annexed to the venire, though he be rightly named in the subsequent process, it is not amendable, and that is was so held in Codwell's case *. M. 35 & 36 Eliz. B. R. It appeared in that case upon examination that it was the same man who was returned on the venire,

** 5 Co. 42. b. and 43. a.'

and

and that his right name was Robert Moore; and for the reasons aforesaid by the opinion of the whole Court the postea was amended, and judgment given.

In Danv. Abr. tit. "Amendment," p. 330. is the case of Hugo v. Payne, 39 Eliz. B. R. where Tippett the true name was returned on the venire, but in the habeas corpora and distringas he was named Typper; yet if he be sworn and try the issue by his right name, it shall be amended; and said that the same was adjudged in Marshall's case, 40 Eliz. B. R., and in the case of Arundel v. Blanchard, Mich. 13 Jac. 1. But in the case of Floyd. Bethell, T 13 Jac. I. B. R. there also cited, in the distringas the juror was Ap Pell and one Ap Bell was sworn, and said that it could not be amended by the Court after the death of the sheriff; for it cannot be intended to be the same man, for they are different names in Wales where this trial was; but said that, if the sheriff who made the return had been living, he might have amended it. Several more cases are there cited; and in p. 331. where the mistake is in the surname; but if right in the return to the venire, the Court would amend it. In Cro. Jac. 116. M. 2 Jac. 1. B. R. in error from a judgment in B. R. the error assigned was the juror was named Constantinus in the return to the venire and in the distringas, but he was returned in the panel and sworn by the name of Constantius; and it was held to be a manifest error, and not amendable.

All these cases were before the stat. 21 Jac. 1. c. 13. s. 2. And from these it appears that even before that statute, mistakes in the surname of a juryman were generally holden to be amendable, if the return to the venire were right.

But the statute 21 Jac. 1. c. 13. has put the matter beyond all doubt in respect to surnames. The words are "no judgment shall be stayed or arrested after a verdict because any of the jury who tried the issue is misnamed either in the surname or addition in any of the jury process, or in any return thereupon, so as upon examination it appear to be the same person who was meant to be returned." So this statute has settled the point as to surnames, but has left the point as to christian names as it was before. Nor do I know that such mistakes are remedied by any of the subsequent statutes.

But even as to christian names the cases are various both before and after this statute. In the cases already cited it seems to be held that mistakes in the christian flame were not amendable. But in Codwell's case, 35 & 36 Eliz. B. R. 5 Co. 42. b. and 43. a., and which is called the case of Galdwell v. Parker, in Cro. Car. 263., in an appeal of maihem between Codwell and Parker verdict for the plaintiff; and moved in arrest of judgment that there was a variance between the return of the venire and the distringas and the postea in the name of a juryman. In the return to the venire he is named Palus Cheak, in the distringas and postea Paulus, by which name he was sworn; there judgment was arrested, because he was misnamed in the panel to the venire; but it was held that if he had been rightly named on the return to the venire, and wrong in the other process, it should have been amended on examination.

REV. APRIL, 18co.

C c

• If

If in the return to the venire a juror be called Pearse Thomas and so in the habeas corpora, but in the panel annexed to the habeas corpora he is called Peese Thomas, and is sworn by that name, and it appears upon examination that he was the same person that was returned; held to be amendable, though this was upon a writ of error. T. 42 El. B. R. Dauv. Abr. tit. " Amendment," p. 330. These cases were before the statute. Since the statute, in the case of Rowe and Bond, v. Devys, M. 15 Car. 2. B. R. in Cro. Car. 563; Sir W. Jon. 448; and Danvers 330; in the return to the venire a juryman was named Samuel, and so in the distringas, but in the panel annexed he was called Daniel, and sworn by that name as appears by the record, and gave a verdict for the plaintiff; though this was not within the stat. 21 Jac. 1., yet it appearing upon the examination of the juror himself that he was the person returned, and that his right name was Samuel, and that there was no other person of that name in the parish, and by the examination of the sheriff and his clerk that it was the misprision of the clerk, who, though he had the distringas before him, wrote Daniel for Samuel in the panel; and the juror likewise swearing that, there being a great noise in the court when he was sworn, he answered supposing himself to be called by his right name of Samuel; the record was ordered to be amended, and the judgment was not stayed; and the Court held, though the statute 21 Jac. 1. extended only to surnames, and did not therefore help the present case, yet that this was amendable by the common law, and by the statute 8 Hen. 6. c. 12. as being only a misprision of the clerk.

There is indeed a case in Cro. Car. 203., between Downs and Winterflood, M. 6. Car. 2. where this seems to be doubted: but that was in an attaint, and no judgment appears to be given. The case was thus; one of the jurors was returned by the name of Alexander Prescot; in the resummons, which is in the nature of a distringas, he was called Alexandrus Prescot, and was sworn by that name; the verdict of the petit jury was affirmed, and this was moved in arrest of judgment: the Court held clearly that this was not aided by the statute 21 Jac. 1. c. 13. But as the cases cited to arrest the judgment were where the mistake was in the return to the venire, and as it appeared there that the return to the : first process was right, Alexander being the true name, and it appearing that he was the juror who was intended to be returned and sworn, the Court seemed rather inclined to think that the second process might be amended, but adjourned the consideration thereof.

These are the most considerable cases that I can find, which seem to bear any resemblance to the present.

And now I shall come to the consideration of the present case. It was truly said by the counsel for the plaintiff that we ought not to go out of the record (unless in respect to such matters as throw an imputation on the jury and cannot appear on the record itself, concerning which I have been more particular in the case of Norman v. Beamont * in this term, so I need not repeat what I there said); and

* See the preceding case.'

they

they cited the case of Arundel v. Arundel, Cro. Jac. 12; and Dyer 163. b. pl. 56. which are full to this purpose.

Now the record here being right, and no variances appearing thereupon, there is no occasion for any amendment, nor can the judgment be reversed on a writ of error, and for the same reason the judgment cannot be arrested: whereas in all the cases cited the variance appeared on the record: and therefore unless the record were amended, the judgment ought to have been arrested, or it would have been reversed on a writ of error. The only question therefore in every one of them was whether the record should be amended.

So all the cases were very different from the present, in which there can be but one question, whether by reason of a matter not appearing on record but laid before the Court by affidavit, we shall set aside the verdict and grant a new trial. And I think it would be very unjust to grant a new trial in the present case, since there is no objection to the verdict itself, since the objection does not appear upon the record, and since it appears by the affidavit which makes out the objection, that the juryman who was sworn on the jury and tried the cause was the person who was summoned and returned and intended to be a juror in the cause, which is the very reason relied on in the statute 21 Jac. 1. c. 13. and in all the cases where amendments have been ordered.

I did not lay much stress upon the answer which was given by the counsel for the plaintiff, that a man might have two christian names, one at his baptism and another at his confirmation; but for the reasons aforesaid I was of opinion that the rule ought to be discharged.

6

My Brothers Abney and Burnett were both of the same opinion. They thought that Henry and Harry might be taken to be one and the same name. That, as granting new trials was merely in the discretion of the Court, they thought this was such a case that the Court ought not to set aside the verdict, since it was agreed to be a just verdict, and since no variance appeared on the record, and there was not any imputation upon any of the jury.

And Brother Burnett said that the only question in this cause was, whether, when Courts always go as far as they can to support a verdict, we should in this case set aside a verdict contrary to justice and to the reason of all the cases that had been cited. He likewise cited Arundel's case, Hob. 64, where Lisney in the habeas corpora was made Listney to agree with the venire, though the true name was Lisney, because they sound so like. He also cited some other cases where Baskervill and Baskerfield, Stoke and Stokes, Hastin and Hastings, Mac Kair and Kair, had been holden to be the same names. And per Curiam, the rule was discharged +.

* Vid. 2 Rol. Rep. 168.'

In R. v. Roberts, 2 Str. 1214. on a trial at bar of a traverse to an inquisition of lunacy, the Court ordered (against the defendant's consent) the christian name of one of the jurymen to be altered from Henry to Harry, on his acknowleging that he was the person summoned.'