
    
      George Kinloch vs. E. H. Carsten.
    
    Special demurrer because defendant is designated in the declaration by the initial letters, E. H. of his Christian name: demurrer overruled, (
      
      )
    
    In a declaration in the City Court of Charleston, it is a sufficient allegation of jurisdiction over the person of the defendant to describe him as “ a resident within the City of Charleston.”
    
      In the City Court of Charleston, July Term, 1851.
    The report of his Honor, the Recorder, is as follows :
    “This case came up on a special demurrer to the plaintiff’s declaration. Two grounds of demurrer were assigned:
    
      
      “ 1st. That the designation of the defendant in the declaration by the initial letters of his Christian name, was insufficient, and in the argument, it was urged, was to be regarded either as a 'misnomer or as no name at all?
    
    
      “ The 2d ground taken was as to the insufficiency of the allegation of jurisdiction.
    “ The declaration, like the writ, simply stated, ‘ that the defendant was a resident within the city)’ and did not state, (as it was alleged in argument it should have been done,) either that the defendant had been a resident for three months before suit brought, or for four months the year preceding, as the case might be, or a sort of inferential deduction sometimes used, and ‘ subject to the jurisdiction of the City Court.’
    “I overruled the demurrer on both grounds; and the plaintiff subsequently had a verdict upon proof of his cause of action on the Inquiry Docket, and entered up his judgment accordingly. With regard to the alleged misnomer (or in the view of the defendant’s counsel more properly speaking, non nomer., perhaps a new term,) it appeared that the writ was issued against the defendant by the name of E. H. Carsten; that he had entered, through his attorneys, a formal and regular appearance in the appearance book, in this case, in the very name by which he had been sued, to wit, E. H. Carsten.
    
      “ Recognising fully the principle, that in legal proceedings, as a general rule, the full and entire name of the parties to the suit, plaintiff and defendant, as well as the names of third parties necessarily used in pleadings, should be stated, and that describing them by mere initials would not be sufficient, it appeared to me very clear that where a defendant had been sued by the initials of his Christian name, as in this case, and had appeared in that name, it was too late to take advantage of the supposed defect, either as a misnomer or non nomer, whether by plea in abatement or demurrer to the declaration. The case cited in the argument, of Norris vs. Graves, from 4th Strob. 32, does not conflict with this view of the law ; and the important distinction whether the supposed imperfect statement by ini
      
      tials, occurs in that of the name of the plaintiff or of the defendant, is clearly pointed out. In a case where a defendant is shed by the initials of his Christian name, in which bail is required, and he gives bail in the same name, I have no doubt he would be estopped from making the objection in any form by plea, whether in abatement or by way of demurrer to the plaintiff’s declaration. I had occasion to consider the question in this form recently in another case, and so ruled. To a plea in abatement, of misnomer of the defendant's name, the plaintiff may always reply, that the defendant is as well known by the name by which he is sued, as that which is alleged by the defendant to be his true name. Suppose the question raised here had come in that form upon a plea in abatement 1 Could not the plaintiff have replied that the defendant was as well known by the name of E. H. Carsten as by that of Elisha Huger Carsten, for example ? How many men are better, if not exclusively known by the initials, than by the full Christian name ? and if this has resulted from their own acts, use or acquiescence, it appears to me that treating such persons in the names they have assumed and sanctioned, and by which they are known in the community, is all that can be required on the part of those having any grounds of complaint against them which render them amenable to the law. It seems to me that much of the learning of the common law, in regard to misnomer, must needs be obsolete, for it must be apparent that in early times, continued down in some degree to our own, what are now called Christian names, could only have been lawfully bestowed in baptism. I infer that in those times, however remote, a heathen could have been sued by his surname, as we now call it. It would have defeated then, all the ends of justice, to have required, as a preliminary to the hearing of the complaint on its merits, that the Christian name should be stated in full, in regard to one who had rendered himself amenable to justice, but had not, nor dreamed, perhaps, of ever having a Christian name. I know of no law of the State requiring persons to be baptized to give them a right to Christian names, as we understand the subject at this time, and, indeed, if baptism has ceased to be regarded as essential to introduction into the Christian church, (as seems to be settled in England,) it would appear to follow that persons are to be known only by the names they have assumed and are recognized by in their intercourse with the world. I cannot see why a person known only to the community in which he lives, by a surname, is not, and should not be, held responsible in that name to the laws of the country and the legal proceedings of its tribunals. There are many distinguished men, (in England, at least, from whom all our learning on this subject has come,) known to us only by their surnames or titles, as “ Norfolk,’’ “ Shrewsbury,” “ Arundel” and.“Surrey,” and it is exceedingly doubtful whether the shortly expected hero of Hungary would be, or could be, any further identified than by the name of “ Kossuth.” I assume that what may be done in other countries, in regard to the assumption and use of names, under our institutions, belongs to, and is the right of, every member of the community, each, in some points of view, regarded in himself as a “ sovereign.”
    “With regard to the second objection, I have no doubt that the allegation of jurisdiction is quite sufficient, when, as in this case, the writ and declaration both and each allege that “ the defendant is a resident within the city.” The term resident, I feel obliged to consider as used in the legal sense, therefore impliedly, if not expressly, alleging that the defendant was such a resident as the Acts conferring jurisdiction on the City Court make amenable to the jurisdiction of that Court.”
    Wm. Rice.
    The defendant appealed, and now moved in arrest of judgment, on the grounds assigned as causes of special demurrer at the hearing ; and because the general demurrer should have been sustained for want of the jurisdiction of the City Court not having been sufficiently set forth in the declaration.
    Northrop, for the motion,
    contended that E H was no name at all, and that the objection was properly taken by special demurrer. He cited 4 Strob. 32 ; 3 Exchr. Rep. 14; 15 Mees. & W. 277 ; 57 Eng. C. L. R. 177; 2 Sp. 46 ; 4 McC. 487. On the question as to the jurisdiction, he cited 1 Wash. R. 81; 1 Saund. 74 ; 1 Chit. Plead. 306 ; Com. Dig. Pleader, C. 7, 6 ; 2 Sp. 274; 1 N. & McC. 227 ; 2 Rich. 494 ; 7 Stat. 301, 319.
    Phillips, contra,
    oil first ground, cited 3 Rich. 433 ; Harp. 49 ; 4 McC. 487; 2 Sp. 46 ; Barnes’s notes, 163 ; 2 Stra. 693 ; 2 Wils. 393 ; 3 Wils. 49 ; 4 Taunt. 713 ; 1B.&P. 250 ; Loft, 227; 2 Rich. 10. On the second ground, he cited Trescott vs. Clement, Mss. Dec. 1820.
    
      
      (a) Vide last case, Wilthaus vs. Ludecus.
      
    
   The opinion of the Court was delivered by

Evans, J.

The first ground of the demurrer in this case is decided by the case of Ludecus ads. Wilthaus, in which the opinion has just been delivered. I take the occasion to add to what has been said in that case, that, even admitting the cases referred to in that opinion, the demurrer must be overruled here, because it is admitted that E may be a name because it is a vowel, and as to the H, it has been decided that a middle name may be set out by an initial.

There is great propriety in requiring this to be pleaded in abatement, for so universal is the use of initials' that people are much better known by initials than by any other name. More than half the Judges of the State never sign their names except with initials, and are known to the community by their initials alone. When pleaded in abatement, the plaintiff may reply that the person is as well known by one as the other, and if the jury so find, that is an end of the matter. But if on special demurrer the Court assume, without proof, that the letters are only initials and not the proper names of the party, the plaintiff has no opportunity to make the question whether the person is not known as well by one as the other name.

The second ground of demurrer is on the assumption that, according to the pleadings, the City Court has no jurisdiction. The City Court is a Court of limited jurisdiction, both as to the subject matter of the action and the person of the defendant. There is, however, a material difference between the two. A judgment m a case where the inferior Court has no jurisdiction of the cause of action, is absolutely void, and the authorities say that if such a judgment be enforced by levy on the goods of the defendant, the plaintiff would be liable in trespass. It is not likely the same consequences would result where the want of jurisdiction is as to the person. That, I should think, should, in some way, be pleaded or objected to at the trial. In this case, the defendant has put in a demurrer, and the question is whether, from the facts stated in the pleadings, it appears that the City Court has jurisdiction of the case.

The declaration alleges that E. H. Carsten, a resident within the city of Charleston, Spc. at the city of Charleston and within the jurisdiction of the City Court of Charleston., was indebted. The Act of 1801 (7 Stat. 301) gives jurisdiction to the City Court in all actions, suits and proceedings for the recovery of any debt, or sum of money, arising on contract, provided the verdict shall not exceed one hundred dollars, and “also provided, that no suit, or action, shall be brought, or maintained, in the said Court, unless the contract had been made, or arose, within the limits of the city of Charleston and between persons resident in the said city, or between residents and foreigners.” The Act of 1818 (7 Stat. 319) enlarges the jurisdiction to $500, with a proviso, that nothing contained therein shall extend to any inhabitant of this State who may not be resident within the city of Charleston, “ and no person shall be construed to be a resident in the said city unless he shall have resided therein three months prior to the commencement of the action or prosecution, or shall have resided within the said city four months of the year vrmnediately preceding the commencement of the suit or prosecution.” There are some other Acts on the subject of jurisdiction, but they contain nothing material to this issue. That the contract was made within the city, is abundantly set out; but the objection is, that there is not enough to give the Court jurisdiction of the defendant. He is said to be a resident only, but as this Court has not jurisdiction over all residents, that is not sufficient. , The declaration should have gone further and said that he was a citizen of the State and had resided three months in the city or four months immediately preceding, according to the Act of 1818, or something equivalent.

If the Act had limited in words the jurisdiction to such persons as had resided three months within the city, or four months during the year immediately preceding, there would be some ground for this demurrer. But the Act of 1801 gives jurisdiction between persons resident in the city, and the Act of 1818 defines what is meant by resident and who are within the meaning of the word. We think there is much good sense in what is said by the Recorder, that the word must be taken in the sense given to it by the Act, and that it means that the defendant was a resident according to the definition of that word as defined by the Acts creating the jurisdiction. Besides this, much consideration is due to the opinion of the Recorder on a question of pleading which arises every day in his own Court.

We are of opinion the demurrer was properly overruled on both grounds, and the motion is dismissed.

Wardlaw, Frost, Withers and Whitner, JJ. concurred.

O’Neall, J. did not hear the argument.

Motion dismissed.  