(F) Taking Advantage of a Misnomer, &c. No advantage can be taken at the trial of a misnomer of the plaintiff, though there be a person of the name erroneously used. Moody v. Aslatt, 1 C. M. & R. 771; 5 Tyr. 492; 1 Gale, 47 A defendant waives an objection to a misnomer by taking out a judge's order, wherein he uses the name by which he was arrested. Nathan v. Cohen, 3 Dowl. P. C. 370.g (F) of the Manner of taking Advantage of and pleading a Misnomer or Want of Addition. ALTHOUGH a defendant may, by pleading in abatement, take advantage of a misnomer when there is a mistake in the writ or declaration, as to the name of baptism or (a) surname, yet in such a plea he must set forth his right name, so as to give the plaintiff a better writ. Finch. 363; 9 H. 5, 1 pl. 3. (a) That the safest way in criminal cases is to allow the party's plea of misnomer, both as to his surname and as to his Christian name; for he that pleads misnomer for either, must in the same plea set forth what his true name is, and then he concludes himself; and if the grand jury be not discharged, the indictment may presently be amended by the grand jury, and returned according to the name he gives himself. 2 Hal. Hist. P. C. 176.- -That the party accused may take advantage of the misnomer, or want of addition, but yet he must plead over to the felony; but though such plea be found for him, he is not to be discharged, but must be indicted over again; neither shall such plea, if found against him, be peremptory, but he shall be tried on his plea in chief. 2 Hawk. P. C. c. 34. Also, he who pleads in abatement must not only set forth his right name, but must also allege, that by such name he was known and called at the time of the purchase of the writ. Gouldsb. 86; Skin. 620, pl. 4; Salk. 6, pl. 15; 4 Mod. 347. The plaintiff may reply that the defendant is as well known by the name used in the process as by the other. Petrie v. Woodworth, 3 Caines, 219; Goodenow v. Tappan, i Ham. 61.g He who will take advantage of the misnomer of his Christian name, addition, or surname, must do it upon his arraignment; and the entry must be special, viz. super quo venit Robertus Williams, qui indictatus est per nomen Johannis Williams, et dicit quod ubi in indictamento supponitur quod quidam Johannes Williams, vi et armis, &c. Ipsius nomen est Robertus et non Johannes; for if he should say, venit prædictus Johannes Williams, he concludes himself, and cannot plead that his name is Robert. Hal. Hist. P. C. 175. So, where the defendant pleaded misnomer in abatement in this form, et prædict. J. Germyn (with an n at the end) venit et defend., et dicit, that his name is Germy (without an n) and not Germyn prout, &c., and upon demurrer to this plea it was adjudged against him; for that he had admitted his name to be Germyn, by his appearing and making defence by that name; but that if he would have taken advantage of the misnomer, he should have pleaded in this manner: et Johannes Germy, qui per nomen J. Germyn superius implacitatur, venit et dicit quod; for this default a respondeas ouster was awarded. Carth. 207, Tallent v. Germyn; ||and see Roberts v. Moon, 5 Term R. 487; Docker v. King, 5 Taunt. 652; Tidd's Pract. 637, (9th ed.)|| So, where the defendant was sued by the name of Edward Cotteral, and pleaded in abatement that his name was John, but introduced his plea, and the aforesaid Cotteral (leaving out his Christian name) comes and defends the force and injury, when, and so forth; it was held, that the defendant saying et predict. Cotteral must be understood et prædict. Edwardus Cotteral, by which he confesses his name to be Edward; and if (F) Taking Advantage of a Misnomer, &c. he would have taken advantage of the misnomer, he should have said, et Johannes, who was sued by the name of Edward. Mich. 9 G. 2, in B. R. Humberston v. Cotteral; Mann v. Carley, 4 Cowen, 148; Gordon v. Hollida, 1 W. C. C. R. 285.g Defendant pleaded that the plaintiff's Christian name was not inserted in the writ; plaintiff replied that he was as well known by his surname as by his Christian name. Held, bad. Labat v. Ellis, 1 Tayl. 148. ||And the defendant in a plea of misnomer in abatement must give his surname as well as his true Christian name, although his true surname be used in the declaration. Haworth v. Spraggs, 8 Term R. 515; Docker v. King, 5 Taunt. 652.|| If there be a mistake in the Christian name and surname, the defendant may take advantage of both, and his plea on that account shall not be held to be double; as, where trover was brought against the defendant by the name of Christopher Mature, and he pleaded in abatement, that his name was John Metter, and that he was known by that name; absque hoc, that he was named by the name of Christopher Mature; on demurrer to this plea, because of duplicity, and because no venu was laid where he was baptized, it was held, 1st, That there being a mistake in both names, the defendant could not take advantage thereof, in a better manner than he has done; for he is not bound to admit one of the names right, which if he did, he would not then give the plaintiff a better writ, the prænomen and cognomen being only one description of the same person; and though there is no precedent, where misnomer has been pleaded both in the Christian name and surname, yet that may be because it is a matter that has rarely happened; and for this were cited 1 Lutw. 10; Thom. Ent. 1; 1 Salk. 6. 2d, That there was no necessity of laying a venu, this being a matter relating to the person, which must be tried where the action is laid; and for this were cited Rast. Ent. 29; Hern's Plead. 9; 1 Salk. 6; 6 Mod. 115. Trin. 10 G. 2, in B. R. Read v. Mature; Cases temp. Hardw. 286, S. C. No oyer is now grantable of an original writ,(a) the effect of which has been to prevent a plea in abatement of the writ for want of the defendant's addition; for no such plea can be pleaded until after oyer.(b) And it is unnecessary to insert the defendant's addition of place or degree in any declaration.(c) (a) Boats v. Edwards, 1 Doug. 227. (b) Deshons v. Head, 7 East, 283. (c) Gray v. Sidneff, 3 Bos. & P. 395. A bill of Middlesex and notice thereto describing defendant as Mr. A, without stating his Christian name, is irregular.(d) (d) 1 Chitt. R. 398; and see 4 Moo. 317; 1 Bro. & B. 529. And in the King's Bench, where the party arrested was described in the process and affidavit to hold to bail, by the initials of his Christian name only, the court ordered the bail-bond to be delivered up to be cancelled, and the defendant discharged upon entering a common appearance.(e) And in that court where the Christian name of the defendant is omitted in a bailable writ, the court on motion will set it aside for irregularity; but where it is omitted in serviceable process, they will leave the party to his plea in abatement.(g) So, in the Common Pleas, if a defendant be arrested by the initials of his Christian name only, and sign a bail-bond in a similar manner, the court will discharge him on entering a common appearance, on (G) Who may take Advantage thereof. his undertaking to bring no action.(h) But where by a writ of capias the sheriff was directed to take Messrs. C and D, without mentioning their Christian names, and they afterwards signed a bail-bond in their Christian and surnames, the court held the irregularity waived,(i) and every subsequent writ of alias, &c. must correspond with that which has gone before in the names of the parties.(k) But a misnomer may be cured by altering the writ, and getting it re-sealed before the return.(?) And where process is sued out against four defendants, one of whom is misnamed, it may be served upon the three whose names are right; and if the name of the other be afterwards altered, and the writ amended, it is good against all.(m) (e) 4 Barn. & A. 536. (g) 6 Barn. & C. 165. (h) 6 Moo. 264; and see 3 Bing. 296. (i) 4 Moo. 317; 1 Bro. & B. 529. (k) 3 Term R. 660. (7) 1 Chit. R. 321. (m) Ibid. 398 a. When defendant has been arrested by wrong name, the court will order the bail-bond to be delivered up to be cancelled.(a) (a) 4 Maul. & S. 360; 8 Moo. 526; 1 Bing. 424. If a person enter into a bond by a wrong Christian name, and be sued thereon, he should be sued by that name, as a declaration against him by his right name, stating that he executed the bond by a wrong name, is bad.(b) (b) 3 Taunt. 504; and see further, Tidd's Prac. 447, 449, (9th edit. ;) 2 Saund. R. 209 a, b, (5th edit.); Scull v. Biddle, 2 Wash. C. C. 200; Meredith v. Hinsdale, 2 Caines, 362, acc. An action against two defendants, one was arrested, and the other returned not found; in the declaration the defendant not found was called John instead of George, the plaintiff was nonsuited for the variance. Waterbury v. Mather, 16 Wend. 611. When the original process against a man is by a wrong name, it will not warrant his arrest; but an execution, when it follows the name of the original process, although by a wrong name, will authorize the officer to arrest the defendant. Griswold v. Sedgwick, 6 Cowen, 456.g (G) Who may take Advantage thereof. THE defendant, though his name is mistaken, is not obliged to take (c) advantage of it; and therefore if he be impleaded by a wrong name, and afterwards impleaded by his right name, he may plead in bar the former judgment, and aver that he is una et eadem persona. (c) J. Villars, who pretended himself to be Earl of Buckingham, was arrested by the name of J. Villars, armiger; and, on motion, the court gave him leave to put in bail, without joining in the recognisance, and thereby not estop himself. Salk. 3, pl. 7, pl. 17; 7 Mod. 38. So, if a person be indicted and acquitted of a crime, and afterwards be indicted for the same offence, in which second indictment the crime is described to be the same in substance, with some variation of the name, addition, &c., he may make good the variance, by averring that he was the same person meant in both. 2 Hawk. P. C. c. 35, § 3. If a person killed be described by his proper name and surname in the first indictment, and by a different surname in the second, such variance may also be helped by an averment, that the person so differently named was one and the same person; to which it is advisable to add, that he was known as well by the name in the first, as by that in the second indictment. 2 Hawk. P. C. c. 35, § 3. (A) What it is, how restrained, &c. If a defendant appear gratis, and by attorney, to an information, he may plead a misnomer in abatement, as well as if he had appeared in person; for if he be not the person intended, his plea may be rejected, and judgment signed by nihil dicit; but the attorney-general, by accepting his plea, admits him to be the defendant, and shall not afterwards say, that it doth not appear but that the plea might be put in by a stranger. 2 Hawk. P. C. c. 34, § 3. One defendant cannot plead misnomer of his companion; for the other defendant may admit himself to be the person in the writ. Lutw. 36; @Atkinson v. Clapp, 1 Wend. 71. See Waterbury v. Mather, 16 Wend. 611. So, if several persons be indicted for one offence, misnomer, or want of addition of one, quasheth the indictment only against him, and the rest shall be put to answer; for they are in law as several indictments. 2 Hal. Hist. P. C. 177. See title ABATement, D.♬ MONOPOLY. (A) Monopoly, what it is, and how restrained by the Common Law. (A) Monopoly, what it is, and how restrained by the Common Law. A MONOPOLY is described by my Lord Coke to be an institution or allowance by the king by his (a) grant, commission or otherwise, to any person or persons, bodies politic or corporate, of or for the sole buying, selling, making, working, or using of any thing, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade. 3 Inst. 181; Noy, 182. (a) Monopoly and engrossing differ only in this, that the first is by patent from the king, the other by act of the subject, between party and party; but are both equally injurious to trade, and the freedom of the subject, and therefore are equally restrained by the common law. Skin. 169. And therefore all grants of this kind, relating to any known trade, are made (b) void by the common law, as being against the freedom of trade, discouraging labour and industry, restraining persons from getting an honest livelihood by a lawful employment, and putting it in the power of particular persons to set what prices they please on a commodity; all which are manifest inconveniences to the public. Hawk. P. C. c. 79, §2. Townsend's Collection of Proceedings in Parliament, 244, 245. (b) And it is held to be further restrained by the common law, by subjecting those who are guilty thereof to a fine and imprisonment for the offence, as being malum in se, and contrary to the ancient and fundamental laws of the kingdom; and it is said, that there are precedents of prosecutions of this kind in former days. 3 Inst. 181; 2 Inst. 47, 61. And upon this ground it hath been resolved, that the king's grant to any (A) What it is, how restrained, &c. particular corporation, of the sole importation of any merchandise, is void, whether such merchandise be prohibited by statute or not. 2 Roll. Abr. 214; 3 Inst. 182; 2 Inst. 61. Hence also it seems, that the king's charter, empowering particular persons to trade to and from such a place, is void, so far as it gives such persons an exclusive right of trading, and debarring all others. And it seems now agreed, that nothing can exclude a subject from trade but an act of parliament. Raym. 489; 2 Chan. Ca. 165; Vern. 127; Sands v. East India Company, Skin. 165, pl. 2, 226, 234; 3 Mod. 126. Also, it hath been adjudged, that the king's grant of the sole making, importing, and selling of playing cards, is void; notwithstanding the pretence, that the playing with them is a matter merely of pleasure and recreation, and often much abused, and therefore proper to be restrained; for since the playing with them is, in itself, lawful and innocent, and the making of them an honest and laborious trade, there is no more reason why any subject should be hindered from getting his livelihood by this than any other employment. 11 Co. 84; Moor, 671; Noy, 173; 2 Inst. 47. And for the like reasons, also, it hath been resolved, that the grant of the sole engrossing of wills and inventories in a spiritual court, or of the sole making of bills, pleas, and writs in a court of law, to any particular person, is void. 2 Roll. Abr. 212; Jon. 231; 3 Mod. 75; Vern. 120, 130; 10 Mod. 107, 131, 133. But it seemeth clear, that the king may, for a reasonable time, make a good grant to any one of the sole use of any art invented, or first brought into the realm, by the grantee. Noy, 182; Hawk. P. C. c. 79, § 6. Also, it seems to be the better opinion, that the king may grant to particular persons the sole use of some particular employments, (as of (a) printing the Holy Scriptures, and law-books, &c. ;) whereof an unrestrained liberty might be of dangerous consequence to the public. Mod. 256; 3 Keb. 792; 3 Mod. 75, and the authorities to the last paragraph but one. (a) The reasons hereof given are, that the invention of printing was new; that it concerned the state, and was matter of public care; that it was in the nature of a proclamation, and none could make proclamations but the king; that as to law-books, the king has the making of judges, serjeants, and officers of law; that they are printed in a particular language and character, with abbreviations, &c. Vide 2 Chan. Ca. 67; Skin. 234. See, as to the copyrights grantable by the crown, tit. Prerogative (F), and Godson on Patents and Copyright, b. 3. Where a monopoly is intended for the public good, it cannot be exercised by the grantee for his mere private advantage, without regard to the rights and interests of the public. Therefore, where the London Dock Company having built warehouses in which wines were deposited, upon payment of such a rent as they and the owners agreed upon, afterwards accepted a certificate from the board of treasury under the warehousing act, 43 G. 3, c. 132, whereby it became lawful for the importers to lodge and secure wines there without paying the duties in the first instance, and it did not appear that there was any other place in the port of London where the importers had a right to bond their wines; it was held that such monopoly was enjoyed by them for the public benefit, and that they were bound by law to receive the goods into their warehouses for a reasonable hire and re |