Joseph H. Brainard vs. Cornelius Stilphin Jr. and Daniel Sanborn, 6 Vt. 9

The opinion of the Court was pronounced by Mattocks, J. — The question which is raised in this case, is whether there is such a fatal repugnancy in the extent or execution under which the defendants justify, as to make the Captain, who issued the same, and the Orderly Sergeant, who executed it, trespassers. And the objection is, that the warrant recites that the fine was inflicted by Cornelius Stilphin, Captain, and is signed by Cornelius Stilphin Jr. Captain. If these names must be considered as meaning two persons, then the process is bad.

But if they may be considered the same person by any legal in-tendment, then it is well. Questions of misnomer have generally arisen upon pleas of abatement, and our ancient sages were nearly as nice upon names, as the Fathers were upon the question whether a baptism in bad Latin could be canonical. In Crane vs. King, 1 Will. 554, the plaintiff declared against Henry King, otherwise Henry Vaughan King; and the declaration was adjudged bad, because the defendant could not have two Christian names at the same time. In Holman vs.

Walden, 1 Salk. 6, defendant plead in abatement that he was baptized by the name of John, and was not called or known by the name or surname of Benjamin Walden. Plaintiff replied he rvas called and known by the name and surname of Benjamin Walden. To this defendant demurred, and at first the Court inclined against the replication, on the ground that the only material part of the plea was the name of baptism, and that he could have no other. But at last it was decided the other way — Ch. J. Holt saying that “one may have a nomen and a cognomen, that never was baptised, as thousands in fact have:” and in Bowen vs.

Shapcott, 1 East. 542. and in Sabine vs. Johnstone, 1 Bos. & Pul. 60, it was decided that if the defendant was known by one name as well as another, he might be sued by either. In Franklin vs. Talmadge, 5 John. R. 84, it was decided that a writ should not abate for omitting the middle name, on the old ground that a person has no right to have two Christian names. In Lepra vs. Brown, 1 Salk. 7, defendant was declared against as A. B. of D. in the custody of the Marshal. The defendant pleaded in abatement that his father lived in D. likewise, and that his name was A.

B., and that he, the defendant, ought to have been called Junior in the bill.— The Court said, any other appellation to distinguish father and son was as good as Senior or Junior; and the son’s being in the custody of the Marshal, was a sufficient distinction. They also said, if father and son had lived in different counties, & the process had been an original one, there had been no need of such addition ; and in pursuance of this, the Courts in New-York and Massachusetts have decided that Junior is not in law any part of a person’s name. Indeed how cam it be?

Not by baptism. — No male is thus baptized : and females, it is believed, never have that appellation. The son, when he comes to correspond-, or do business, assumes this addition to his name, if his residence is near his father’s, to prevent mistakes by confounding names and persons : and this, as the residence of either party shifts, he drops and assumes at pleasure, not asking leave of the Legislature, as is done when it is proposed to exchange an uncouth name for one that is more sonorous.

Junior, then, being but an addition of designation, which it is sometimes proper to use, and sometimes useless, like 2d and Sd, which are also often used : and as the propriety of its use depends on time and place, if the Captain was C.

Stilphin Jr. ás he has signed himself — if on the 28th day of June, when the plaintiff was amerced, his father lived out of the county, according to 7 Salk., or out of town, according to the practice of some, or out of the State or the United States, then the Captain might have properly called himself Cornelius Stilphin : and if before the 15th of July, 1830, when the execution was dated and signed, the father had come into the same town or county to dwell, then it would have been consistent to sign himself Cornelius Stilphin Jr. Captain. If such was the fact, the proceedings would be punctiliously correct.

And to meet a technical objection founded on a clerical error in fact, any in-tendment short of absolute absurdity should be made.— But upon more enlarged principles, as Junior is no part of the name, why may it not be expunged or treated as sur-plusage, as if it had been “ of St. Albans, or Roanoke ?”— and then the two supposed Captains will be a unit, and this Junior will no longer perplex his Seniors by causing them to demur upon this knotty case. Stephens, Smith & Royce, for defendants. —-, for plaintiff.

The constitutionality of the militia law has been presented in the plaintiff’s brief in this Court: but as that question was not slated below, and this law has been so long acquiesced in, we have not thought it necessary to go into that point. Upon the whole, we think there is no such irregularity in this extent as would render it void, or not a justification to the Justice and Sheriff if it had been an execution.

And it would be the height of injustice to hold military officers, whose main duties are not of a clerical cast, to a greater strictness in such matters than would be required of the judiciary, whose duty it is especially to know and to follow .the forms of law. The judgement of the County Court is reversed.