151 of Nebraska. mOJltgages wete given for bona fide debts due from the mortgagor to the mortgagees. There was no trust, secret or expressed, in favor of anyone else. This is a question of local law, ana the latest utterances of the supreme cOurt of Nebraska show 'very Clearly that the execution of these mortgages was not prohibited by, or Il. fraud on, \he assignment laws of that state, but were lawful and valid transactions. Britton v. Boyer, 27 Neb. 522, 43 N. W. Rep. 356jDavis v. Scott, 27 Neb. 642,43 N. W. Rep. 407. In the last case cited the court say: " Thatthis mortgage given to secure bona fide debts seems to be fully tablished, and in this state,under the holdings of this court, a creditor in lng circumstances may prefer his creditors. Justice would be subserved by requiring .an equitable distribution of the property between all creditors in such C;iSPS, and a change in the law on that subject is worthy of the consideration of the ll''gislature. But the common law in regarct to ,preferences is in full force in this state, and, as that law recognizes the right of a failing debtor to prefer his creditors, etrorcannot be assigned 'because of such erenee. The mortgagee, therefore, being a b01Ul fide Qredit<.Jr" and prior lien to that of the attaching creditors. was entitlesl; to the POS8i:1ll\ion of the property until a Bufficie\lt alD9unt had been s91c.l to'satisfy'tiis,c1a.iWs."
was
A private corporation, in a fa,ilingcondition,haa sallIe ,gpni.PJ.oP,lawrigbtthat a natural person bas to of payment, or b,y giving', security on its pl'Qperty\' one or theexolusionof others. ,-Moll; Priv. Corp. §, §335. -"The,' plaintiff will be allowed to proveip JW: the amount of his debt,tlll anJlns!;l<iured c1j\iQa,to be paiq. other unsecured debts, out of the if any, tllat'r\:lmains /lftersllk on isfying the. mechanics' liepi'J,mQr!gages, and 9tper debts that are the propfilrly;, and nsto all further relief the bill is ' i ; . The comp1ajnants in the cross-bU1s (the entitled to a foreclosing their respective,;lllortgages,as prayed. " .' , Let, be made to the master to ascertain ,and report :\)'jthout delay the order of priority and amount of theseveraJ, .liens on the prop-
MCCLASKEY
et' al.v.
BARR
etal.
8. D. Ohio, W. D; FebruarY 21,1891.) 1. ,, WJirNB\lS--MJ:JfORANDA TO REFRESH MElIIORy-SERVJOIll. OJ' PllOOE811.
Meinorailda made by an otnear, showing he served process, may be referre4 . to in order to refresh his memory in testifying as to the facts. . · A of process "Jacob Kraig" as served eient;'the names not being'idemsonana. " '.,
'".
SERVJOE OJ' PBoCBss-fl,ETURN!"'""mllllll SONANS.
on "Jacob Krug" iSlnium. ' , .
.'
., -
, ·
'In EqUity;' For fonneneportB, see 38 Fed. Rep. 165, 40,Fed. Rep. -559, and;42;Fed. Rep. '60th" , : ': ., ' ; ; : : . " " H' .· G1wan:&; ,Ferris, H. -'1. Fay,- and Oe"8On, Shieli!4.:,&; Carson, for -. complainants. .: i;
152
FEDERAL REPORTER,
vol. 45.
Stephens, Lincoln &- Smith, Bateman &- Harper, and S. T. Orawford, for respondents. . SAGE, J. Exceptions to report of' special master, to whom was rethe application of certain defendants to set aside the returns of service made upon them in the superiur court of the city of Cincinnati, before the removal of the case to this court. I have carefully examined the report, together with the testimony sub· mitted,to the master. My conclusion is that his findings are, with one exception, correct. I do not think that the testimony offered ou behalf of defendants, being altogether negative in its character, is sufficient to overcome the evidence afforded by the, returns of service, ,and by the positive testimony of theoflicers who made the service. Their memoranda, showing how the was made, could properly be referred to by them in testifying as to facts of which they had no recollection independent of thememorancla, the same having been made at the time. Whart.Ev.§518. ,' It appears, however, that Service 'Was made upon "Jacob Krug," whose name does not appear in the petition, in the, amended bill, or in the writ, naris there any nllme similar to it in the pleadings. The master finds that; under the doctrine idem 8onam, service was good as against Jacob Kraig, who is a defeadant,although there is no evidence, aside from the return lnst above; that he was served. In this I think the ter is in error. "I know of no case in which the doctrine of has been carried to that extent.' . , Mr. Chitty, in his work on, Practice, (volume 3, p. 232,) says that "the most recent publications have drawn the conclusion that it is only in material deviations that the defects in the spelling of names will be treated as irregularities, but that the term 'material' has been so technically construed as in some cases to give effect to objections which, in ordinary acceptation, 'Would be considered immaterial. n The result, there-fore, he adds, "seems to be that, although the courts are now indisposed to give effect to summons or motions on account of mistakes that have not altered the sense or meaning of process, nor could have misled the most ignorant person, yet, unless in the clearest cases, it will be found most judicious to abandon any objectionable process,' and proceed de novo." In 10 East; 83, King v. Shakespeare, the defendant was indicted for an assault under the name "Samuel Shakepear," Lord ELLENBOROUGH said ,that the final "e" mighfnotmake a material difference, but the omission of the"s" in the middle makes it a differentIy sounding name from {he true one. Whereupon, all the judges assenting, it was considered that Baid Samuel Shakespeare be not compelled to answer said indictment, and he was discharged without day. In Rexv. JOalveii,2 Cromp,' & M. ,189, the court set aside an attachment, and discharged the defendant out of custody, because, in the copy was spelled "Calver" instead of of the rule served upon hiIP his " Calvert."
M.'CLASKEY V. BARR.
153
In Whitwell v. Bennett, 3 Bos. & P. 559, " John Couch" was held to be a fatal variance from "John Crouch;" and in Queen v. Drake, 2 Salk. 660, it was held that where a letter omitted or changed in a name makes another word, though it be insensible, the variance is fatal. "Burrell" for "Burrill" was held to be a fatal variance in COm. v. lespie, 7 Sergo & R. 47U, where the rule of idem 80nans is fully discussed. The court said in Petrie v. Woodworth, 3 Caines, 219, that, where the name appears to be a foreign name, the variance of a letter, which according to the pronunciation of that language does not vary the sound, is not a misnomer. There "Pitrie" was sued as "Pitris j " which did not affect the pronunciation in French. In Mannv. Carley, 4 Cow. 148, "Grautis" and "Gerardus," also "Quar;. tus" and "Gerardus," were held to be different names. Justice WASHINGTON, in Lessee 0/ Gordon V. Holiday, 1 Wash. C. C. 285, says that the uSe of names is to describe the individual of whom we speak so as to distinguish him from some other person, and therefore a rational and sourid rule is that where two names have the same original derivation, and where one is an abbreviation or corruption of the other, but both are taken promiscuously and according to common use to be the same, though different in sound, the use of one for the other is not a material misnomer; and, if in common use the names be the same, the person cannot be misnamed if either be used. He cites Griffith's Case, as given in Gilb. Com. Pi. 219, as a strong one to illustrate the rule. There it was said that "Saunders" and "Alexander," which differ,en" tirely in sound, are not distinct names of baptism, because "Alexander" is called "Saunders," so "Piers" and "Peter," "Joan" and "Jane," ",Franciscus" and "Francis," "Garret," "Gerald," and "Gerard." But if the name be wholly mistaken, if it be repugnant to truth, as if "Alexander" be used instead of "Thomas," the misnomer is fatal. Therefore he says the question always is, are the names different, not in sound, but in derivation or in use? To test the matter in the present case, I have referred to the Cincinnati directory for the year 1890. I find one name "Kraig;" the Christian name is Jacob. I presume that he is the defendant in ·this case. Turning to the name "Krug," I find that there are 32 persons, male and female, in the city to whom it belongs; and therefore I am still more strongly led to conclude that the return of service as made upon "Jacob Krug" is not a good service as against the defendant "Jacob Kraig," and to that extent the exceptions to the master's report will be sustained. In all other respects they will be overruled.
FEDEHAL REPOHTEH,
vol. 45. et al.
McARTHUH
et al.
'D.
(Oircuit Oourt, S. D. Ohio, W. D. February 21, '1891.)
At Law. Rev. St. U. S. § 914, is as follows: "The practice, pleadings, and forms -and modes of proceeding in civil causes, other than equity and admiralty, in the circuit and district courts, shall conform as near as maybe to the practice, pleadings, and forms and modes of proceeding ;existing at the time in like causes in the courts of record of the state 'within which such circuit or district courts are held." Lawrence 1rfa:cwell, Jr., for plaintiff. R · .A. HctII'1'i.8on and A. H. Gillett, for defendants. SAGE, J. In this, which is a consolidated case against several ants in ejectment, a supplemental petition was filed November 28, 1890, setting forth that the defendant John Rathbun has died pending the action, leaving as his heirs at law Rei Rathbun, (who was a,ppointed adD:!inistrator of his estate,) George W. Rathbun, et al.; and that, shortly after the decease of said John Rathbun, his son,George W. Rathbun, children, of. whom five are minors, died, leaving as his heirs at law JUld James Williamson as their gUl:Lrdian. The prayer of the petition is that the consolidated action may be revived said heirs at law, .said James T. Williamson in lieu of said John Rathbun, deceased. answers of Rei Rathbun and Jame.s.T. Williamson, as The guardia,n, are filed, each setting up that John Rathbun died on the 28th of March, 1887, intestate, and that subsequent tohisdeath, to-wit,.8tt the October term, 1887, of this court, said consolidated action was finally tried, and judgment rendered therein in favor of the plaintiff against the other original defendants thereto, and therefore that the action was not pending when the so-called" supplemental petition for revivor" was filed, the same having been theretofore finally determined. The answer further sets forth that the plaintiffs were advised of the death of John Rathbun within a few days after it occurred, to-wit, in the month of March, 1887 j and that in May, 1887, through their attorneys,