JAMES TIBBETS vs. JACOB KIAH

This was assumpsit on an account annexed.

The defendant pleaded in abatement that he “ was known and called by the surname of Currier, and not Kiah.” The plaintiff replied that the defendant “ was called and known as well by the name of Jacob Kiah, as by the name of Jacob Currier,” and an issue being joined on this fact, it was found for the plaintiff, under a direction from the court, that however the defendant might spell his name, yet if it was pronounced according to the spelling used by the plaintiff, he was entitled to their verdict.

A motion was made for a new trial, on the ground of misdirection,

jV. Rogers, for the defendant. -

(1) Shep. T. 55.

The issue in this case, was not how the name of the defendant was written or spelt, but how he was “called and known.”

The sounds of words often differ so much from what we would expect on seeing them written, that a pronouncing dictionary like that of John Walker’s, writing the words as they are sounded, has been deemed a great acquisition to the world of letters. Pronunciations of the same word differ also in different sections of the same country; and a man’s identity by his name must to most of the people of his neighborhood depend solely upon the customary pronunciation of it. “ Usus et jus et norma loquendi."

It has long been settled, that bad spelling does hot vitiate deeds. Falsa orthographia non vitiate chartam.(l) The use of a name is merely to designate the person intended; and that object is fully accomplished, when the name given to him has the same sound with his true name.

Thus in an indictment it has been held no variance in setting out an instrument, if the word “ received” is spelt “ reicevd.” 2 Strange 889.—2 East Cr. Law 978. So a writ will not abate, if the name of the defendant be written “ Petrie" instead of “ Petris, it being idem sonans.(2) Oa the same principle, it is no variance if the name of the defendant in the writ be spelt “ Kay" and the instrument in evidence be signed “ Key.”(3)

These doctrines pervade all the following cases. 1 East 542, Shapcott instead of Shipcott.—2 Taunt. 401, Benedetts instead of Beniditts.—2 Caines Rep. 362, Hinsdale instead of Hinsdall.—4 Mod. 347, Symonds instead of Symons. See also, 1 Bos. & Pul. 60.— 2 Phil. Ev. 2, note.—13 John. Rep. 486, Wood vs. Bulkley.

*559Á striking illustration of the different ways of spelling a word so as to retain the same sound is to be found in Tomlin’s Repertorium Juridicum, (Pref. 3.) The name “ Allen” is sometimes written Alan, Allan, Allane, Allein, Alleyn and Allen.