misnomer n. the wrong name.
misnomer noun error in naming,
misapplied name,
miscalling,
misnaming,
misterm,
wrong designation,
wrong name
MISNOMER. The act of using a wrong name.
2. Misnomers, may be considered with regard to contracts, to devises
and bequests, and to suits or actions.
3.-1. In general, when the party can be ascertained, a mistake in the
name will not avoid the contract. 11 Co. 20, 21; Lord Raym. 304; Hob. 125.
Nihil facit error nominis, cum de corpori constat, is the rule of the civil
law.
4.-2. Misnomers of legatees will not in general avoid the legacy,
when tho person intended can be ascertained from the context. Example:
Thomas Stockdale bequeathed "to his nephew Thomas Stockdale, second son of
his brother John Stockdale," 1000œ, John had no son named Thomas, his second
son was named William, and he claimed the legacy. It was determined, in his
favor, because the mistake of the name was obviated by the correct
description given of the person, namely, the second son of John Stockdale.
19 Ves. 381; S. C. Coop. 229; and see Ambl. 175; 3 Leon. 18; Co; Litt. 3 a;
Finch's R. 403; Domat l. 4, t. 2, s. 1, n. 22; 1 Rop. Leg. 131.
5.-3. Misnomers in suits or actions, when the mistake is in the name
of one of the parties, must be pleaded in abatement; 1 Chit. Pl. 440; 1
Mass. 76; 5 Mass. 97; 15 Mass. 469; 16 Mass: 146; 10 S. & R. 257; 4 Cowen,
R. 148; Coxe, 138; 6 Munf. 219; 2 Wash. C. C. R. 200; 2 Penna. R. 984; 5
Halst. R. 295; 1 Pen. R. 75, 137; 6 Munf. 580; 3 Caines, 170; 1 Tayl. R.
148; 8 Yerg. 101; Harp. R. 49; for the misnomer of one of the parties sued
is not material on the general issue, when the identity is proved. 16 East,
R. 110.
6. The names of third persons must, be correctly laid, for the error
will not be helped by pleading the general issue; but, if a sufficient
description be given, it has been held, in a civil case, that the misnomer
was immaterial. Example: in an action for medicines alleged to have been
furnished to defendant's wife, Mary, and his wife was named Elizabeth, the
misnomer was held to be immaterial, the word wife being the material word. 2
Marsh. R. 159. In indictments, the names of third persons must be correctly
given. Rose. Cr. Ev. R. 78. Vide, generally, 18 E. C. L. R. 149; 10 East, R.
83, n; Bac. Ab. h.t.; Dane's Ab. h.t.; 1 Vin. Ab. 7; 15 Vin. Ab. 466; 2
Phil, Ev. 2, note b; Bac. Ab. Abatement, D; Archb. Civ. Pl. 305; 1 Metc. &
Perk. Dig. Abatement, V; and this Dictionary, Abatement; Contracts; Parties
to Contracts; Parties to Actions.