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• Title: Richard R. Keene, Plaintiff in Error v. Margaret Meade
• Author : United States Supreme Court
• Release Date : January 01, 1830
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 72 KB

Description

This case comes up on a writ of error to the circuit court of the district of Columbia, and the questions for decision grow out of bills of exception taken at the trial, and relate to the admission of evidence offered on the part of the plaintiff, and objected to by the defendant. The first objection was to and admission of the depositions taken under a commission issued under a rule or order of the court below, on the ground of a variance in the name of the testator Meade, as set out in the commission, from that stated in the title of the cause. The commission purports to be in a cause between Richard M. Meade plaintiff, and Richard R. Keene defendant, whereas the name of the plaintiff is Richard W. Meade. The whole variance therefore consists in the use of M instead of W, the middle letter in the plaintiff's name. This objection, we think, was properly overruled. It was a mere clerical mistake in making out the commission. The rule or order of the court for the commission was in the right name, Richard W. Meade; and the oath taken by the commissioners, and administered to the clerk and the witnesses who were examined, and all the proceedings under the commission were in the cause according to its right title. It was a mistake of the officer of the court, which the court on motion might have corrected on the return of the commission. It may be regarded as mere matter of form, and which has not in any manner misled the parties. And indeed it may well be questioned whether the defendant was at liberty to raise this objection. It has been urged at the bar, that this was an ex parte commission, taken out by the plaintiff, and that the defendant has therefore waived nothing. But the record now before this court warrants no such conclusion. The mode and manner of taking out the commission is governed and regulated by the practice of the court below, and of which this court cannot judge. From the commission itself, and the interrogatories upon which the witnesses were examined, it would appear to have been a joint commission. The commissioners are required to examine all witnesses named or produced to them, either by the plaintiff or the defendant. And one of the interrogatories put to the witnesses was, do you know of any sum or sums of money paid by the defendant to the plaintiff, in money, bills, or merchandizes, which are not credited in the amount now before you. It can hardly be presumed, that such an interrogatory would have been put by the plaintiff. It was to elicit matter of defence, and which concerned the defendant only. The motion for the commission having been made by the plaintiff, would not preclude the defendant from afterwards joining in it with the consent of the plaintiff. And if it is to be viewed as a joint commission, the alleged mistake may be considered as made by both parties, and not to be taken advantage of by either; and besides, it may well be questioned whether the middle letter formed any part of the christian name of Meade. It is said the law knows only of one christian name. And there are adjudged cases strongly countenancing, if not fully establishing, that the entire omission of a middle letter is not a misnomer or variance (Lit. 3, a. 1 Lord Ray. 563. 5 Johns. 84. 4 Johns. 119, note a.); and if so, the middle letter is immaterial, and a wrong letter may be stricken out or disregarded.

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